THESE TERMS OF SERVICE, including the Order(s) and any applicable Service Attachments, which by this reference are incorporated herein (“Agreement”), are a binding agreement between Modas Systems, Inc., a Texas corporation with its primary office at 11450 Pagemill Road, Dallas, TX 75243, (“Modas Systems”), and the legal entity identified in the Order (“Customer”). Modas Systems and Customer may be individually referred to as a “Party” or collectively as the “Parties.”
Modas Systems provides services and equipment intended solely for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that customer accepts and complies with this Agreement. By electronically signing this Agreement, Customer (a) accepts this agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrants that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the services or equipment.
The Parties agree as follows:
Capitalized terms not defined have the meaning given to them in Attachment A below.
2. Ordering and Term
- Ordering Services
Customer may order Services by submitting electronically an Order in the format provided by Modas Systems on the Modas Systems website or, for subsequent orders, via the Administrative Portal. The Order will identify the Services requested by Customer together with: (i) the price for each Service; (ii) scheduled Start Date; (iii) and products leased, licensed or sold to Customer, if any.
An Order will become binding when it is executed by the Customer and accepted by Modas Systems. Modas Systems may accept an Order by commencing performance of the requested Services. The Services will begin on the Start Date, as identified in the applicable Order. Customer may purchase additional Services, software, and equipment through Orders via the Administrative Portal.
- Service Descriptions
The Service Attachment(s) applicable to Customer’s Services are incorporated into and forms a part of this Agreement.
Modas Systems Services are cloud-based unified communications service that includes enterprise-class voice, fax, text, call handling, mobile apps, and bring your own device (BYOD) capability that integrates with a growing list of applications. The Service Attachment for Modas Systems Service is available on request.
Customer may purchase or rent equipment from Modas Systems for use with the Services. The terms and conditions that govern any such transaction can provided via email upon request.
- (i) Purchase: https://www.Modas Systems.com/legal/Modas Systems-hardware-terms-conditions.html.
- (ii) Rental: https://www.Modas Systems.com/legal/lease-rental.html.
- Term of this Agreement
The Term of this Agreement will commence on the Effective Date and continue until the last Order Form is terminated or expires, unless terminated earlier in accordance with its terms.
- Services Term and Automatic Renewal
The Services’ term will begin on the Start Date of the initial Order and continue for the initial term set forth in the initial Order (“Initial Term”). Upon expiration of the Initial Term, recurring Services will automatically renew for successive periods of the same length as the Initial Term (each a “Renewal Term”) unless either Party gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term. The term of any recurring Services added to the Account after the initial Order is submitted will start on the Start Date of the subsequent Order, will run coterminously with the then-current term of any pre-existing Services, and will be billed on the same billing cycles as the pre-existing Services.
3. Invoicing and Payment
- Prices and Charges
All prices are identified in US dollars on the website or Administrative Portal. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account.
Recurring charges for the Services begin on the Start Date, and will continue for the Term. Recurring charges (such as charges for Digital Lines, product licenses, minute bundles, and equipment rental fees) will, once incurred, remain in effect for the Initial Term (as described in an Order Form) or the then-current Renewal Term. Modas Systems will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term. Administrative Fees that Modas Systems is entitled to pass on to its customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice.
Outbound calling rates will be applied based on the rate in effect at the time of use. Customer may locate the currently effective rates in the Administrative Portal.
- Billing and Payment
All Services and equipment must be purchased via valid credit or debit card at the time of purchase. By providing a valid credit or debit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card, including recurring payments billed on a monthly or annual basis. In addition, Customer’s supplied credit card shall be used for any in-month purchases of additional services and products, or where Customer has exceeded usage or threshold limits, or any overage charges. Recurring charges are billed in advance in the frequency set forth in the Order Form, and usage-based and one-time charges are billed monthly in arrears. Credit and debit card payments are subject to the approval of the card issuer, and Modas Systems will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason. Customer is responsible for any credit card chargeback or similar fees for refused or rejected payments that Modas Systems is entitled to charge under this Agreement. If the payment card associated with Customer’s Account is declined or fails for any reason, Modas Systems will send Customer a notice using the contact information associated with Customer’s Account. Modas Systems may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Modas Systems under this Agreement, at law or in equity.
Unless otherwise stated at the time of purchase or on the invoice, payment is due in full, without deduction or set-off, within thirty (30) days of the date on the invoice. Any payment not made when due will be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by Law. Modas Systems’ acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Modas Systems’ rights to collect any amount due. Modas Systems may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
All rates, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated by competent authority. If any withholding tax is levied on the payments, then Customer must increase the sums paid to Modas Systems so that the amount received by Modas Systems after the withholding tax is deducted is the full amount Modas Systems would have received if no withholding or deduction had been made.
- Billing Disputes
If a Customer reasonably and in good faith disputes any portion of Modas System’s charges, it must provide written notice to Modas Systems within thirty (30) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges. Customer will be reimbursed any outstanding billing credits at the expiration or termination of this Agreement.
4. Provision of the Service
- General Terms
Modas Systems will provide the Services as described in the relevant Service Attachment. Modas Systems may enhance, replace, and/or change the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without Customer’s consent.
- Customer Care
- a) Customer must provide all first-tier support to Customer’s End Users. Modas Systems may require Customer’s Helpdesk support personnel to complete a series of training courses on Modas Systems’ Services. Such training will be provided online by Modas Systems at no cost.
- b) Modas Systems will make second-tier remote support available to Customer’s Helpdesk personnel and/or Account Administrators via the Modas Systems Customer Care Center, which will be available 24/7, to attempt to resolve technical issues with, and answer questions regarding the use of the Services. Onsite and implementation services are not included in the Modas Systems Customer Care support.
- c) Customer may open a case with Modas Systems Customer Care at https://success.Modas Systems.com/RCContactSupp. Any individual contacting Customer Care on behalf of Customer must be authorized to do so on behalf of the Account and will be required to follow Modas Systems’ authentication protocol.
- Professional Services
Modas Systems offers a broad portfolio of professional services that includes onsite and remote implementation services; extended enterprise service, including dedicated proactive network monitoring and premium technical support, and consulting. Any such services are governed by this Agreement, Modas Systems’ Professional Services Agreement, and any applicable Statement of Work (SOW)., which may be attached hereto.
Modas Systems may provide any of the Services hereunder through any of its Affiliates or subcontractors, provided that Modas Systems will bear the same degree of responsibility for acts and omissions for those subcontractors acting on Modas Systems’ behalf in the performance of its obligations under this Agreement as it would bear if such acts and omissions were performed by Modas Systems directly.
5. Use of the Service
- Service Requirements
The Services are dependent upon Customer’s maintenance of sufficient Internet access, networks and power as set forth in Modas Systems’ Technical Sufficiency Criteria, available at https://www.Modas Systems.com/legal/policies/technical-sufficiency-criteria.html. Modas Systems will not be responsible for any deficiencies in the provision of the Services if Customer’s network does not meet Modas Systems’ Technical Sufficiency Criteria.
- Use Policies
Customer and its End Users may use the Services only in compliance with this Agreement, applicable Law, and the Use Policies referenced below, which are incorporated into and form part of this Agreement. Customer may not use, or permit the use of the Services to interfere with the use of Modas Systems’ Services by others, or with the operation of the Modas Systems Network. Customer may not resell the Services. Customer must ensure that its End Users comply with the Use Policies. Any breach of this Section 5B (Use Policies) will be deemed a material breach of this Agreement.
Modas Systems may update the Use Policies from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer.
- Acceptable Use Policy
The Services must be used in accordance with Modas Systems’ Acceptable Use Policy, available at https://www.Modas Systems.com/legal/acceptable-use-policy.html.
Notwithstanding anything to the contrary in this Agreement, Modas Systems may act immediately and without notice to suspend or limit the Services if Modas Systems reasonably suspects fraudulent or illegal activity in the Customer’s Account, material breach of the Acceptable Use Policy, or use of the Services that could interfere with the functioning of the Modas Systems Network, provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. Modas Systems will promptly remove the suspension or limitation as soon as the condition, activity or use is resolved and mitigated in full. If Customer anticipates legitimate but unusual activity on its Account, Customer should contact Modas Systems Support in advance to avoid any Service disruption.
- Emergency Services
Modas Systems’ policy governing the provision of emergency services accessed via the Services is available at https://www.Modas Systems.com/legal/emergency-services.html.
- Termination for Cause
Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; ii) at the written recommendation of a government or regulatory agency following a change in either applicable Law or the Services; or iii) to the extent permitted by law upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors.
- Effect of Termination
- a) If Customer terminates the Services, a portion of the Services, or this Agreement in its entirety due to Modas Systems’ material breach under Section 6(A) (Termination for Cause), Customer will not be liable for any fees or charges for terminated Services for any period subsequent to the effective date of such termination (except those arising from continued usage before the Services are disconnected), and Modas Systems will provide Customer a pro-rata refund of all any prepaid and unused fees or charges paid by Customer for terminated Services.
- b) If this Agreement or any Services are terminated for any reason other than as a result of a material breach by Modas Systems or as set forth in Section 14(K) (Regulatory and Legal Changes) the Customer must, to the extent permitted by applicable Law and without limiting any other right or remedy of Modas Systems, pay within thirty (30) days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term plus related Taxes and fees.
7. Intellectual Property
- Limited License
- Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, Modas Systems grants to Customer and its End User, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable license to use any software provided or made available by Modas Systems to the Customer as part of the Services (“Software”) to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that Customer is entitled to use the Services and subject to the Customer being current on its payment obligations.
- Customer will not, and will not allow its End Users, to:
- a) Sublicense, resell, distribute or assign its right under the license granted under this Agreement to any other person or entity;
- b) modify, adapt or create derivative works of the Software or any associated documentation;
- c) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;
- d) use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services Customer is authorized to use;
- e) create any competing Software or Services; or
- f) remove any copyright or other proprietary or confidential notices on any Software or Services.
- IP Rights
- Modas Systems’ Rights
Except as expressly provided in this Agreement, the limited license granted to Customer under Section 7(A) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by Modas Systems and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open source software or code. Customer acknowledges that misuse of Modas Systems Services may violate third-party IP Rights.
- Customer Rights
As between Modas Systems and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to Modas Systems a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP rights.
- Use of Marks
Neither Party may use or display the other Party’s trademarks, service mark or logos in any manner without such Party’s prior written consent.
- Restrictions on Use or Disclosures by Either Party
During the Term of this Agreement and for at least one (1) year thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information.
Each Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to it in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by Law.
These restrictions on the use or disclosure of Confidential Information do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of this Agreement by the Receiving Party; which at the time of disclosure was already known to the Receiving Party, without restriction as evidenced by documentation in such Party’s possession; or which the Disclosing Party confirms in writing is free of such restrictions.
Upon termination of this Agreement, the Receiving Party will promptly delete, destroy or, at the Disclosing Party’s request, return to the Disclosing Party, all Disclosing Party’s Confidential Information in its possession, including deleting or rendering unusable all electronic files and data that contain Confidential Information, and upon request will provide the Disclosing Party with certification of compliance with this subsection.
9. Data Protection
- Data Privacy
Modas Systems respects Customer’s privacy and will only use the information provided by Customer to Modas Systems or collected in the provision of the Services in accordance with: the Privacy Notice available at http://www.Modas Systems.com/legal/privacy-notice.html which is hereby incorporated by reference. Modas Systems may update the Privacy Notice from time to time and will provide notice of any material updates to the Customer as required by applicable Laws at the email address on file with the Account. Such updates will be effective thirty (30) days after such notice to Customer.
- Data Security
Modas Systems will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification.
Customer must protect all End Points using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify Modas Systems immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify Modas Systems may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Modas Systems will not be liable for any charges resulting from unauthorized use of Customer’s Account.
- Software Changes
Modas Systems may from time to time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent Modas Systems from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by Modas Systems. Modas Systems will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes.
10. LIMITATION OF LIABILITY
- Excluded Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
- Direct Damages
EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 10(B) (DIRECT DAMAGES) WILL NOT APPLY TO: I) CUSTOMER PAYMENT OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.
The limitations of liability contained in this Section 10 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
- Indemnification Obligations
Customer agrees to indemnify and defend Modas Systems and its Affiliates at Customer’s expense, from and against any and all third-party claims, arising out of or in connection with: i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Modas Systems, or iv) claims relating to Customer Content. Further, Customer will indemnify and hold harmless Modas Systems against all damages, costs, and legal fees finally awarded against Modas Systems by a court of competent jurisdiction in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Customer.
- Defense and Indemnification Procedures
Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the third-party claim, (b) sole control over the defense and settlement of the third-party claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
- Modas Systems Warranty
Modas Systems will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, Modas Systems shall pass through to Customer any and all warranties Modas Systems receives in connection with equipment provided to Customer.
- Customer Warranty
Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws and this Agreement.
- Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND MODAS SYSTEMS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT MODAS SYSTEMS CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
13. Dispute Resolution
- Good Faith Attempt to Settle Disputes
In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
In the event that the Parties are unable to resolve a Dispute, any related action, lawsuit, or proceeding must be brought in and adjudicated exclusively by state or federal courts located in the city and county of San Francisco, California, United States of America. Each Party hereby consents to and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such actions or lawsuits and irrevocably waives any right that it might have to assert that either forum is not convenient or that any such courts lack jurisdiction.
- Equitable Relief
Any breach of either Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in additional to any other relief to which such Party may be entitled under applicable Law.
Except for actions for non-payment or liability arising from Section 11 (Indemnification), no claim, suit, action or proceeding relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Any actions, lawsuits, or proceedings must be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit or proceeding as a class or collective action, private attorney general action or in any other capacity acting in a representative capacity.
- Relationship of the Parties
Modas Systems and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Modas Systems and Customer.
Neither Party may assign the Agreement or any portion thereof without the other Party’s prior written consent (which such consent may not be unreasonably withheld or delayed), however either Party may assign the Agreement and all of that Party’s rights and obligations thereunder without consent (a) to an Affiliate; (b) to the Party’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Services under this Agreement; or (c) as part of the transfer or disposition of more than fifty percent (50%) of a Party’s voting control or assets. This Agreement will bind and inure to the benefit of the Parties, and their permitted assigns and successors.
Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email or five days after deposit with a reputable overnight courier service, and addressed as follows:
to Modas Systems at:
Modas Systems, Inc.,
Legal Dept., 11450 Pagemill Road,
Dallas, TX 75243 USA,
with a copy to legal@ModasSystems.com, and to Customer at either the physical address or email address associated with the Customer Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.
The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section 14C (Notices) or by Customer in the Administrative Portal.
- Force Majeure
Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from a Force Majeure Event. The suspension of obligations under this Section 14D (Force Majeure) may under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.
- Third-Party Beneficiaries
Modas Systems and Customer agree that there will be no third-party beneficiaries to this Agreement.
- Internal Customer Activities
Modas Systems does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customer and any third party with respect to ownership or control of any Account or Account Data. All information within Modas Systems’ records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, Modas Systems may take any course of action that it deems appropriate based on the information available, which include declining to take any course of action.
Modas Systems may access your Account and related data as required to provide the Services. However, Modas Systems has no obligation to access your Account, Account Data or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting or other professional services.
- Headings, Interpretation
The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).
- Governing Law
The Agreement is governed by the Laws of the State of California, excluding its choice of Law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Customer’s use of the products or Services.
Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.
- Export Control
Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.
- Regulatory and Legal Changes
In the event of any change in Law, regulation or industry change that would prohibit or otherwise materially interfere with Modas Systems’ ability to provide Services under this Agreement, Modas Systems may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
- Entire Agreement
The Agreement, together with any exhibits, Orders, and Service Attachments, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.
- Order of Precedence
In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Order Form; (ii) the applicable Service Attachments; (iii) the main body of this Agreement; (iv) Use Policies and Privacy Notice; and (v) and any other document expressly referred to in this Agreement which governs the Services.
Except as otherwise provided, this Agreement may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order, be effective. Notwithstanding the foregoing, Modas Systems may update this Agreement or any of its Equipment, Use Policies and Data Privacy Policies from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer. In the event that any such update would be of material detriment to Customer and is not required by Law, Customer must inform Modas Systems of its objection within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach agreement within thirty (30) days, either Party may terminate the portion of the Services affected by the change without penalty by written notice to the other Party. Any use of the Services after the effective date will be deemed Customer’s acceptance of the change.
- Severability and Waiver
In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.
Notwithstanding anything to the contrary in this Agreement, Modas Systems may identify Customer as a customer (including use of any Customer logo or trademark) and may refer to this Agreement during its earnings calls and in connection with its business deals, press releases, and marketing and/or promotional materials.
Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (c) the Agreement will be a binding obligation of that Party.
- Electronic Signature and Counterparts
This Agreement may be executed electronically and in separate counterparts each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.
The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or an Order will survive expiration or termination of this Agreement or the Order, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions and miscellaneous.
Attachment A – Definitions
Definitions. Capitalized terms used in this Agreement but otherwise not defined have the following meaning:
- “Account” means the numbered account established with Modas Systems and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, multiple services, Digital Lines, or End Users may be included in a single billing account, and/or a single Customer may have multiple billing accounts encompassing different geographic locations, business units, or other designations as requested by Customer and accepted by Modas Systems.
- “Account Administrator” means the person(s) who have been granted authority by Customer to set up, amend, or otherwise control settings and/or make additional purchases for the Account via the Administrative Portal. Account Administrators may have varying levels of Account rights, skills, or permissions.
- “Account Data” means: any business contact information provided with the Account; Modas Systems-generated logs of calling or other metadata developed or collected in the provision of the Services; configuration data; and records of Digital Lines and any Services purchased under this Agreement.
- “Administrative Fees” means any administrative recovery fees, 911 cost recovery fees and the like separately charged by Modas Systems to Customer.
- “Administrative Portal” means the online administrative portal through which Account Administrators control settings and/or make additional purchases for the Account.
- “Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of greater than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.
- “Confidential Information” means any information disclosed by or on behalf of the Disclosing Party) to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.
- “Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.
- “Digital Line” means a phone number assigned to an End User or a specifically designated location (e.g., conference room) and the associated voice service for inbound and outbound calling that permits an End User generally to make and receive calls to and from the public switched telephone network as well as to and from other extensions within the same Account.
- “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed by such Party’s agents, including but not limited to, its Affiliates, officers, directors, employees and attorneys.
- “Dispute” has the meaning set forth in Section 13(A) (Good Faith Attempt to Settle Disputes).
- “Effective Date” means the date of execution of the initial Order.
- “Electronic Signature” means an electronic sound, symbol, or process, including clicking a digital button to accept, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
- “End Point” means an application or device through which any End-User might access and/or use any of the Services, including without limitation IP Desk Phones, Desktop Clients, Web Clients, Mobile Applications, and Software Integrations.
- “End User” means an individual user to whom Customer makes the Services available, and may be a natural person, and may include but is not limited to Customer’s employees, consultants, clients, external users, invitees, contractors and agents.
- “Force Majeure Event” means any event or circumstance that are beyond that Party’s control, which are considered without limitation as force majeure: any act of God; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; Sub-processor failure; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.
- “Helpdesk” means first-tier support provided to End Users by Customer.
- “Indemnifying Party” and “Indemnified Party” have the meanings set forth in Section 11(B) (Defense and Indemnification Procedures).
- “Initial Term” has the meaning set forth in Section 2(E) (Services Term and Automatic Renewal).
- “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
- “Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governing Federal, State, local or non-U.S. governmental body with jurisdiction over the Services.
- “Order(s)” or “Order Form(s)” means a request or order for Services describing the type and quantity of Services required by Customer and submitted and accepted by the Parties in accordance with Section 2(A) (Ordering Services). The Order may be presented and executed on the Modas Systems website or via the Administrative Portal.
- “Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees and attorneys receiving Confidential Information.
- “Renewal Term” has the meaning set forth in Section 2(E) (Services Term).
- “Modas Systems Customer Care” means Modas Systems’ Customer support operations, available at https://success.Modas Systems.com/RCContactSupp.
- “Modas Systems Network” means the network and supporting facilities between and among the Modas Systems points of presence (“PoP(s)”), up to and including the interconnection point between the Modas Systems’ network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The Modas Systems Network does not include the public Internet, a Customer’s own private network, or the PSTN.
- “Service(s)” means all services provided under this Agreement and set forth in one or more Order(s).
- “Service Attachment” means documents appended to the Agreement containing additional terms for equipment and Services.
- “Start Date” means the date so identified in the relevant Order or the date on which Customer orders Services via the website or the Administrative Portal.
- “Taxes” means any and all federal, state, local, municipal, foreign and other taxes and fees charged or collected from Customers, including but not limited to any Universal Service Fund, TRS and 911 taxes and fees.
- “Term” means the Initial Term plus any Renewal Terms.
- “Use Policy” refers to any of the policies identified in Section 5B (Use Policies).
Service Recovery Fee
Federal Universal Service Recovery Fee: This fee is used to recover contributions Modas Systems is required to make to the federal Universal Service Fund, which provides support to promote access to telecommunications services at reasonable rates for those living in rural and high-cost areas, income-eligible consumers, rural health care facilities, and schools and libraries. Modas Systems is permitted, but not required, to recover these costs from its customers. The Federal Communications Commission (FCC) sets the applicable USF rate on a quarterly basis and is subject to change.
Effective Date: October 2019
MODAS SYSTEMS PRIVACY NOTICE
The updated the Modas Systems Privacy Notice goes into effect on November 15, 2019
Modas Systems, Inc. and its worldwide affiliates and subsidiaries (collectively “Modas Systems”, “us”, “we”, “our”) are committed to protecting your privacy while providing you with a positive experience on our website and in using our products and services.
This Privacy Notice (“Notice”) explains our privacy practices and provides information on how and why we collect, use and share your personal data from our customers, website visitors, and end users of our products and services (collectively “you”, “your”) through our interaction with you and through our products and services and. when you visit our website, available at www.ModasSystems.com and associated sub-domains (“Website“) collaboration platform (“Services“). The policy also describes your choices regarding use, access, deletion and correction of your personal information.
Modas Systems’s Privacy Notice applies to Modas Systems websites and Services that link to or reference this Notice. Additional information on our personal information practices may be provided in supplemental term and conditions, supplemental privacy statements, or notices provided prior to or at the time of data collection.
We recommend that you read this Notice in full to ensure you are fully informed. However, if you only want to access a particular section of this Notice, then you can click on the relevant link below to jump to that section.
- Information we collect
- Information we use
- Sharing and disclosure of information to third parties
- Your privacy rights
- Third-party sites
- Blogs and forums
- Data retention
- International data transfers
- Children`s privacy
- Updates to this Notice
- Contact Us
INFORMATION WE COLLECT
As used in this Notice, “personal information” or “personal data” means any information or data relating to an identified or identifiable natural person or household (an “identifier”) that we process in connection with our Websites, Apps, and Services; an identified or identifiable natural person or household is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person or household;
Information which you actively provide to us
We may ask you to provide certain personal information when you create a Modas Systems account, or when you visit or use certain parts of our Website, Apps and Services. The personal information that you are asked to provide, and the reasons you are asked to provide it, will depend on the context in which we are asking for the information.
We collect information which you provide directly to us when you use our Website, Apps or Services. The types of personal information we may collect directly from you include email addresses, postal addresses, phone numbers, employee names, usernames, information about the type of service required, marketing preferences, job titles, credit card payment information, transactional information (including Services purchased), as well as any communications, inquiries, contact or other information you choose to provide during your use of the Services.
When you actively provide this personal information, we will only use this information in a manner that is reasonably proportionate to achieve the specific purpose(s) for which we collect the information.
Information we collect from End Users on behalf of Modas Systems customers
If you are not a Modas Systems customer but you engage in communications powered by Modas Systems Services (an “End User”), we may collect and store personal information about you on behalf of a Modas Systems customer. You may directly communicate this information to us (for example, via a fill-out form or during the process of signing up for an account to publish and share content on Modas Systems’s “Communities” platform) or indirectly (for example, by providing the personal information to the Modas Systems customer during a conversation, and the Modas Systems customer causes the information to be entered into our systems).
This may include your full name, email address, username, other forms of personal information we collect on behalf of the relevant customer, and other forms of personal information we collect as necessary to offer the relevant Website, App or Service. We use this information in connection with providing our Website, App and/or Services to the Modas Systems client on whose behalf we collect or store the information, as otherwise necessary to administer and maintain our Website, Apps or Services, and for other legitimate business purposes permitted by our agreement with the relevant Modas Systems client.
Certain Modas Systems products and services may also access and store personal information about you from a customer’s social media accounts or accounts a customer may have with other third-party services, when the customer chooses to connect its Modas Systems accounts with its other accounts. With respect to social media, only personal information that an End User has directly provided to the relevant Modas Systems customer or that an End User has designated as publicly accessible will be accessed or stored. We use this information in connection with providing our Services to our clients. For example, we use this information to enable Modas Systems customers to respond to social media posts and messages from within their Modas Systems accounts, and to enable Modas Systems customers to track and analyze their interactions with End Users via social media.
Information we collect automatically when you visit our Website or Apps or use our Services
When you visit our Website, or use our Apps or Services, we may collect certain information automatically from your device. In some jurisdictions, including in the European Economic Area, this information may be considered personal data under applicable data protection laws:
Usage information – We keep track of your activity in relation to the Website, Apps or Services, the configuration of your device, and performance metrics related to your use of the Website, Apps or Services. For example, when you use our Services, we may collect:
- Traffic data about the communications that take place through our platform (such as calls, team chat, video conferencing, SMS) to enable us to transmit those communications effectively and efficiently;
- Network Monitoring data to enable us to maintain the security and agility of our internal networks;
- Log data about you when they use the Services, Website or Apps including Internet Protocol (“IP “) address, Internet Service Provider (“ISP“), browser type, referring/exit pages, the files viewed on our site (e.g., HTML pages, graphics, etc.), operating system, date/time stamp, and/or clickstream data to analyze trends in the aggregate and administer the site;
- Device data about any device including mobile phone number and other information related to mobile devices like operating system and model if you use our Services via our Apps. For other devices information collected by cookies and other similar technologies. We use various technologies to collect information which may include saving cookies to your computers;
- Call Detail Records of data record produced by a telephone call or other telecommunications transactions. The record contains various attributes of the call, such as time, duration, completion status, source number and destination number;
- Meta data, which is data created about other data which can include size, formatting, other characteristics of a data item;
- Emails/Communications with us;
- Billing data, which includes any payment data; and
- Publicly available data from End User accounts
Cookies and other similar technologies – We use various technologies to collect information which may include cookies when you visit our Website or use our Apps or Services. Please see the Modas Systems Cookies Notice for further information.
Information we collect from third parties
We may collect the names, e-mail addresses, postal addresses and city of residence of individuals from third parties to market our products / services to these individuals. This collection of information and marketing is always carried out in compliance with applicable law. We only receive this information where we have checked that these third parties either have your consent or these third parties are otherwise legally permitted or required to disclose your personal information to us.
We may receive personal information about you from other sources, including publicly available databases or third parties from whom we have purchased data, and combine this data with information we already have about you, in accordance with applicable laws. This helps us to update, expand and analyze our records, identify new customers, and provide products and services that may be of interest to you.
We may collect personal information about you from other applications you may use if you choose to integrate Modas Systems Apps or Services with other Apps or Services.
INFORMATION WE USE
We may use the personal information we collect from you for a range of purposes, including to:
- Administer, operate, protect and maintain the Website, Apps or Services;
- Process and complete transactions, and send related information, including transaction confirmations and invoices;
- Manage and improve your use of the Website, Apps or Services;
- Prepare and provide you testimonials regarding the Website, Apps and / or Services;
- To help deliver our Website, Apps, or Services to Customers for service and support;
- Investigate and prevent fraudulent activities, unauthorized access to the Website, Apps or Services, and other illegal activities;
- For any other purposes about which we notify and receive your consent from you;
- To help personalize your experience and retarget you for advertising purposes;
- Respond to inquiries and requests and to provide you with information and access to resources that you have requested;
- Aggregate and analyze your and use of the Website, Apps or Services for trend monitoring, marketing advertising purposes; and
- Send you technical alerts, updates, security notifications, and administrative communications.
We and our third-party marketing service providers may also use the information Customers send to us for our marketing purposes, if this is in accordance with your marketing preferences and applicable law. However, you may opt out of our marketing. For further information, see the “Unsubscribe from our mailing List” section below.
Legal basis for processing personal information (EEA only)
If we collect personal information from you in connection with offering our Website, Apps or Services within the European Economic Area (EEA), our legal basis for collecting and using the personal information described above will depend on the personal information concerned and the specific context in which we collect it.
However, we will normally collect personal information from you only where we have your consent to do so, where we need the personal information to perform a contract with you, or where the processing is in our legitimate interests and not overridden by your data protection interests or fundamental rights and freedoms. In some cases, we may also have a legal obligation to collect the personal information in question.
If we ask you to provide personal information to comply with a legal requirement or enter into a contract with you, we will make this clear at the relevant time and advise you whether the provision of your personal information is mandatory or not (as well as of the possible consequences if you do not provide your personal information).
Similarly, if we collect and use your personal information in reliance on our or a third party’s legitimate interests and those interests are not already listed above (see “Information We Use” section), we will make clear to you at the relevant time what those legitimate interests are.
If you have questions about or need further information concerning the legal basis on which we collect and use your personal information, please contact us using the contact details provided under the “Contact Us” section below.
SHARING AND DISCLOSURE OF INFORMATION TO THIRD PARTIES
We will not rent or sell personal information about you. We may share and disclose your information that we collect with the following third parties, solely for a legitimate business or legal purposes and in accordance with applicable law:
- Modas Systems or any of its worldwide affiliates consistent with this Notice for data processing;
- Business partners, contractors, vendors, and authorized third party agents, to:
- Operate, deliver, improve and customize our Services
- Provide support and technical services;
- Send marketing and other operational communications related to our Services;
- Enforce our acceptable use policy;
- Law enforcement agencies, regulatory or governmental bodies, or other third parties in order to respond to legal process, comply with any legal obligation; protect or defend our rights, interests or property or that of third parties; prevent or investigate wrongdoing in connection with the Website, Apps or our Services;
- Any third parties in connection with prospective or actual, sale, merger, acquisition, financing or reorganization of our business.
- A list of our current group companies is available here https://www.modassystems.com/contactus/
Note that, for California residents, we define “sale” and “personal information” in accordance with applicable California law.
YOUR PRIVACY RIGHTS
Update and access to your information
Where we process personal information collected via our Website or Apps or via our Services for our own account management, billing or marketing purposes and where required by applicable law, we provide individuals with the opportunity to access, review, modify, and delete any such personal information that we process.
Requests from End Users
If you believe Modas Systems may have collected or stored personal information from you on behalf of a Modas Systems customer, please contact the Modas Systems customer with any requests related to your personal information.
Your Privacy Rights as a data subject protected by EEA law or California Resident
In addition, if you are an EEA person, a person located in the EEA, or in certain circumstances if you are a California resident, you may have broader rights to access and delete your personal information, to object to or restrict processing of your personal information, to correct your personal information, or request portability of your personal information.
If you are an End User whose personal data we collected on behalf of a Modas Systems customer, please contact the relevant Modas Systems customer directly to make such requests. In other circumstances, you can submit a request through our online portal. We will consider and handle all requests in accordance with applicable laws.
If we have collected and processed your personal information with your consent and it is protected by EEA law, then you can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any processing we conducted prior to your withdrawal, nor will it affect processing of your personal information conducted in reliance on lawful processing grounds other than consent.
You also have the right to complain to your local data protection authority at any time. In general, when processing personal information to provide our Services, we do so only on behalf of our EEA Customers and in accordance with their instructions. This means that if you wish to access, review, modify or delete any personal information we process on behalf of a Modas Systems Customer, under applicable EEA law or otherwise, you should contact that Customer with your request. We will then help them to fulfill that request in accordance with their instructions.
Additional Privacy Rights as a California Resident
If you are a California resident and receive Modas Systems Services or visit our Website or Apps solely as a private individual—in other words, not as the member or representative of a company or other organization—you may have the right to receive a free, yearly accounting of:
- (1) information identifying each third-party company to whom we may have disclosed, within the past year, personal information pertaining to you for our direct marketing purposes; and
- (2) a description of the categories of personal information disclosed.
If you are a California resident who qualifies to receive such an accounting and would like to make one, please email privacy@ModasSystems.com. We do not engage in the sale of personal information within the meaning of California law.
Unsubscribe from our mailing list
We give you the choice of receiving a variety of information related to our Apps and Services. You can manage your communication preferences through the following methods:
- By following the instructions included in each promotional email from us to unsubscribe from that particular mailing.
- Sending us an email at firstname.lastname@example.org or by
- Visiting https://www.modassystems.com/subscription-center.html
These choices do not apply to service notifications or other required communications that are considered part of certain Apps/Services, which you may receive periodically unless you stop using or cancel the App/Service in accordance with its terms and conditions.
This Notice does not apply to, nor are we responsible for, the privacy, information or other practices of any third parties, including any third party operating any site or service to which the Website links including but not limited to social media sites. The inclusion of a link on the Website does not imply our endorsement of the linked site or service. You should check the privacy notices of those sites before providing your personal information to them.
BLOGS AND FORUMS
Our Website offers publicly accessible blogs or community forums. You should be aware that any information you provide in these areas is public and may be read, collected, and used by others who access them and may remain on the public forum indefinitely. To request removal of your personal information from our blog or community forum, you can submit a request through our online portal. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. We encourage all Users to exercise caution when providing personal information in blogs and community forums.
Keeping your information secure is important to us. We maintain a variety of appropriate technical and organizational safeguards to protect your personal information both during transmission and once it is received. Modas Systems has no control over or responsibility for the security or privacy policies or practices of other sites on the Internet you might visit, interact with, or from which you might buy products or Services, even if you visit them using links from our Website.
Please note that no website, mobile app or service is completely secure and so, while we endeavor to protect our Customers’ information using the measures described above, we cannot guarantee that unauthorized access, hacking, data loss or a data breach will not occur.
We will retain your personal information for no longer than is necessary to fulfill the purposes for which the information was originally collected unless a longer retention period is required or permitted by law, for legal, tax or regulatory reasons, or other legitimate and lawful business purposes.
Where we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it.
INTERNATIONAL DATA TRANSFERS
Your personal information may be transferred to, and processed in, countries other than the country in which you are resident. Specifically, information collected outside the United States, including in the European Economic Area (“EEA“), may be transferred to and stored on our servers in the United States, Switzerland, and Netherlands, and potentially in other countries where our group companies and third-party service providers and partners operate. These countries may have data protection laws that are different to the laws in your country (and in some cases, may not be as protective).
However, we have taken appropriate safeguards to ensure that your personal information will remain protected in accordance with this Notice and applicable laws. For example, in respect of personal information originating from the EU and Switzerland, Modas Systems has self-certified to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks. Please click here to view our Privacy Shield Notice.
If you have an unresolved privacy or data use concern that we have not addressed satisfactorily, please contact our U.S.-based third party dispute resolution provider (free of charge) at https://feedback-form.truste.com/watchdog/request.
Under certain conditions, more fully described on the Privacy Shield website, you may invoke binding arbitration when other dispute resolution procedures have been exhausted.
Modas Systems does not provide products or services that are designed for use by children under the age of 16, or knowingly collect personal information from or about children under the age of 16. If you believe that a child under the age of 16 has disclosed personal information to Modas Systems, please contact privacy@modas systems.com.
UPDATES TO THIS NOTICE
We may update this Notice from time to time in response to changing legal, technical, or business developments. If we change our Notice, we will post those changes on this page in addition to updating the “Last Updated” date at the top of this webpage. If we make changes, we will notify you more directly, for example by posting a notification or message on the Website or by emailing you prior to such changes taking effect. We encourage you to review this Notice regularly to stay informed of the latest modifications.
If you have any questions, comments or concerns about this Notice, please e-mail our data protection officer at email@example.com. Or, you can write to us at:
- Modas Systems, Inc.
- Attn: Data Protection Officer
- 11450 Pagemill Road,
- Dallas, Texas
MODAS SYSTEMS Vendor Code of Conduct
Effective October 01, 2019
Modas Systems, Inc. (“Modas Systems”) is committed to the highest standards and ethical conduct. This Code applies to Modas Systems vendors and their subsidiaries, affiliates, and subcontractors (each a “Vendor”) conducting business with or on behalf of Modas Systems. Vendors are expected to provide safe working conditions, treat workers with dignity and respect, act fairly and ethically, and use environmentally responsible practices. Modas Systems requires its Vendors to operate in accordance with the principles in this Modas Systems Vendor Code of Conduct (“Code”) and in full compliance with all applicable laws and regulations. This Code is not intended to create new or additional rights for any third party. When differences arise between standards and legal requirements, the stricter standard shall apply, in compliance with applicable law.
Vendors must promptly inform their Modas Systems contact (or a member of Modas Systems management) when any situation develops that causes the Vendor to operate in violation of this Code. While Vendors are expected to self-monitor and demonstrate their compliance with this Code, Modas Systems may audit Vendors or inspect Vendors’ facilities to confirm compliance. Modas Systems may require the immediate removal of any Vendor representative(s) or personnel who behave in a manner that is unlawful or inconsistent with this Code or any Modas Systems policy. Compliance with this Code, and attending training on this Code, as may be offered by Modas Systems, is required in addition to any other obligations in any agreement a Vendor may have with Modas Systems.
Legal and Regulatory Compliance Practices
All Vendors must conduct their business activities in full compliance with the applicable laws and regulations while conducting business with and/or on behalf of Modas Systems, and must, without limitation:
- Comply with all applicable trade controls, as well as all applicable export, re-export, and import laws and regulations.
- Conduct business in full compliance with antitrust and fair competition laws that govern the jurisdictions in which they conduct business.
- Not participate in international boycotts that are not sanctioned by the United States (U.S.) government or applicable laws.
- Not participate in bribes or kickbacks of any kind, whether in dealings with public officials or individuals in the private sector. Modas Systems is committed to observing the standards of conduct set forth in the U.S. Foreign Corrupt Practices Act (“FCPA”) and the anti-corruption and anti- money laundering laws of the countries in which Modas Systems operates. Vendors must comply with all applicable anti-corruption and anti-money laundering laws, including the FCPA, as well as laws governing lobbying, gifts, and payments to public officials, political campaign contribution laws, and other related regulations. Vendors must not, directly or indirectly, offer or pay anything of value (including travel, gifts, hospitality expenses, and charitable donations) to any official or employee of any government, government agency, political party, public international organization, or any candidate for political office to (i) improperly influence any act or decision of the official, employee, or candidate for the purpose of promoting the business interests of Modas Systems in any respect, or (ii) otherwise improperly promote the business interests of Modas Systems in any respect.
Business Practices and Ethics
Vendors must conduct their business interactions and activities with integrity and must, without limitation:
- Honestly and accurately record and report all business information and comply with all applicable laws regarding their completion and accuracy.
- Speak to the press on behalf of Modas Systems only if the Vendor is expressly authorized in writing to do so by Modas Systems.
- Avoid gifts to Modas Systems employees because even a well-intentioned gift might constitute a bribe under certain circumstances, or create conflicts of interest. Any gifts, meals, or entertainment must comply with applicable law, must not violate the giver’s and/or recipient’s policies on the matter, and must be consistent with local custom and practice.
- Avoid the appearance of or actual improprieties or conflicts of interests. Vendors must not deal directly with any Modas Systems employee whose spouse, domestic partner, or other family member or relative holds a significant financial interest in the Vendor.
- Avoid insider trading by not buying or selling Modas Systems or another company’s securities when in possession of information about Modas Systems or another company that is not available to the investing public and that could influence an investor’s decision to buy or sell the security.
Labor Practices and Human Rights
Modas Systems expects its Vendors to share its commitment to human rights and equal opportunity in the workplace. All Vendors must conduct their employment practices in full compliance with all applicable laws and regulations, and must, without limitation:
- Treat workers with the utmost dignity and respect, and uphold the highest standards of human rights. Modas Systems believes all workers in our supply chain deserve a fair and ethical workplace.
- Not discriminate against any worker based on age, disability, ethnicity, gender, marital status, national origin, political affiliation, race, religion, sexual orientation, gender identity, union membership, or any other status protected by applicable national or local law, in hiring and other employment practices.
- Commit to a workplace free of harassment and abuse. Vendor shall not threaten workers with, or subject them to, harsh or inhumane treatment, including but not limited to verbal abuse and harassment, psychological harassment, mental and physical coercion, and sexual harassment.
- Ensure that all work is voluntary. Vendor shall not traffic persons or use any form of slave, forced, bonded, indentured, or prison labor. Involuntary labor includes the transportation, harboring, recruitment, transfer, receipt, or employment of persons by means of threat, force, coercion, abduction, fraud, or payments to any person having control over another person for the purpose of exploitation.
- Comply with all local and national minimum working age laws or regulations and not use child labor.
- Ensure that workers have an effective mechanism to report grievances and that facilitates open communication between management and workers.
Health and Safety
Vendors are expected to integrate sound health and safety management practices into all aspects of business, and must, without limitation:
- Provide a safe and healthy work environment and fully comply with all safety and health laws, regulations, and practices including those applicable to the areas of occupational safety, emergency preparedness, occupational injury and illness, industrial hygiene, physically demanding work, machine safeguarding, sanitation, food, and housing.
- Prohibit the use, possession, distribution, or sale of illegal drugs while conducting business with or on behalf of Modas Systems.
Environmental Regulations and Protection
- Comply with all applicable environmental laws and regulations regarding hazardous materials, air emissions, waste, and wastewater discharges, including the manufacture, transportation, storage, disposal, and release to the environment of such materials.
- Adhere to all applicable laws, regulations, and customer requirements regarding prohibition or restriction of specific substances, including labeling for recycling and disposal.
Protection of Assets and Intellectual Property
- Vendors are responsible for the proper use of Modas Systems assets. This responsibility applies to all Modas Systems assets, including work product, billing, physical assets such as inventory, equipment, computers, systems, facilities and supplies, intellectual property, such as patents, copyrights, trademarks, inventions, technology and trade secrets, and other proprietary or nonpublic information.
- Vendor shall respect intellectual property rights and safeguard customer information. Vendor shall manage technology and know-how in a manner that protects intellectual property rights.
- Vendor shall comply with all Modas Systems requirements and procedures for maintaining passwords, confidentiality, security and privacy as a condition of providing Modas Systems with goods or services or receiving access to the Modas Systems internal corporate network, systems, and buildings. All data stored or transmitted on Modas Systems-owned or -leased equipment is to be considered private and is the property of Modas Systems. Modas Systems may monitor all use of the corporate network and all systems (including email), and may access all data stored or transmitted using the Modas Systems network.
Reporting Questionable Behavior
If you wish to report questionable behavior or a possible violation of the Code, you are encouraged to work with your primary Modas Systems contact in resolving your concern. If that is not possible or appropriate, please contact Modas Systems through any of the following methods:
- Email: You may send an email to the Director of Compliance at, firstname.lastname@example.org
- Mail: Send a letter to the Director of Compliance at Modas Systems, Inc., Legal and Corporate Affairs, 11450 Pagemill Road, Dallas, Texas 75243.
Modas Systems is committed to continuously reviewing and updating our policies and procedures. Modas Systems therefore reserves the right to amend, alter or terminate this Code at any time and for any reason, subject to applicable law.
Emergency 911 Service Fee
911 Service Fee: This fee is used to recover Modas Systems’ costs directly associated with providing 911 and E911 for DigitalLine customers. This is not a government-mandated charge. This fee applies to DigitalLine and VoIP customers only.
Effective Date: October 2019
Modas Systems Phone Lease Program and Rental Agreement
Last Updated: September 1, 2019
Modas Systems’ Phone Lease Program and Rental Agreement (“Rental Agreement”) is available to those customers who have entered into a written contract for the purchase of Modas Systems Services (hereafter, the Modas Systems Equipment Plan Purchase Agreement) with a minimum Initial Term of at least twenty-four (24) months and a Renewal Term of at least twelve (12) months. For clarification, the Rental Agreement must be conterminous with the Modas Systems Equipment Plan Purchase Agreement and for an Initial Term of at least twenty-four (24) months, and the customer must enter into the Rental Agreement at the same time as the Start Date of the Modas Systems Equipment Plan Purchase Agreement. This Phone Rental/Lease Program is offered and available to United States Residents only.
This Rental Agreement, when entered into, will form part of the Modas Systems Equipment Plan Purchase Agreement, the terms of which are incorporated herein by reference, including, without limitation, all defined terms.
Any capitalized terms not defined herein will have the same meaning as in the Modas Systems Equipment Plan Purchase Agreement, as applicable.
This Rental Agreement is for the rental of certain telephone hardware (each a “Rental Device”) from Modas Systems (collectively, the “Rental Services”). Modas Systems charges a recurring monthly fee for each Rental Device (collectively, the “Rental Fees”). As a part of your recurring bill from Modas Systems, you agree to pay the Rental Fees for all Rental Devices, using the same payment method and payment period as your payments for Modas Systems Office Services, as defined in your Modas Systems Equipment Plan Purchase Agreement. Modas Systems will pro-rate the Rental Fees for any equipment that is rented, for the initial period from the start of the rental period until the end of then-current billing period for the Services, and the start of the rental will begin on the date a Rental Device is recorded as delivered by a designated courier (the “Rental Start Date”).
The Rental Services with respect to a Rental Device shall commence on the Rental Start Date and terminate upon the earliest to occur of (a) either Party delivers written notice of termination of this Agreement to the other Party at least thirty (30) days prior to the applicable termination date (with such termination date being at the end of the Office Services billing period in which the end of such 30 day period occurs, (b) the termination of the Modas Systems Equipment Plan Purchase Agreement. Notwithstanding the above, at any time within thirty (30) days after the Rental Start Date, you may terminate the Rental Services with respect to a Rental Device immediately upon written notice from you to Modas Systems, without paying any Rental Fees for such Rental Device.
Upon any termination of the Rental Agreement or Rental Services, you agree to return or purchase a Rental Device (including all accessories and materials that were provided with the primary hardware device) consistent with Modas Systems’ written instructions and in accordance with the Return or Purchase Rights section of this Rental Agreement, and that Rental Device will no longer be considered a Rental Device upon the completion of a return or purchase. If you do not return a Rental Device (subject to Modas Systems’ inspection and acceptance of the returned Rental Device in its reasonable discretion) within thirty (30) following the termination of the Rental Services for such Rental Device, you will be deemed to have purchased that device at a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current Modas Systems list price, or (2) after such 12 month period, 80% of such list price, and you agree to pay the applicable purchase price.
If you wish to upgrade a Rental Device, the replacement of the current Rental Device shall be deemed a termination of the Rental Services with respect to the current Rental Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Rental Device set forth in the Return or Purchase Rights section of this Rental Agreement; provided that the Rental Services for the current Rental Device shall be deemed to terminate, and the Rental Services of the replacement Rental Device shall commence, on the date the replacement Rental Device is recorded as delivered by a designated courier.
The Rental Fees for the Rental Services do not include additional services you may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or rental and may be calculated based on full retail price or Modas Systems cost price, as determined by the tax law in the jurisdiction of purchase or rental.
Rental Devices Ownership; Damage and Loss, Modas Systems is and will remain the owner of each Rental Device unless title is conveyed to you in writing following Modas Systems’ confirmation to you of its receipt of your payment in full of the purchase price for the Rental Device. You will not grant any third party any right to use, possess, or control any Rental Device, sublease any Rental Device, attempt to dispose of any Rental Device, grant any interest or right in a Rental Device to any third party, or otherwise do anything that undermines Modas Systems’ ownership of each Rental Device. Modas Systems may, without notifying you, assign Modas Systems’ interest in any Rental Device, and in that event, Modas Systems’ assignee will have all of Modas Systems’ rights in the Rental Device under this Agreement, but none of Modas Systems’ obligations. You agree not to assert against Modas Systems’ assignee any claims, offsets, or defenses you may have against Modas Systems. Upon Modas Systems’ request, you will execute and deliver to Modas Systems any documents or forms for protecting Modas Systems’ ownership and interest in each Rental Device, including finance statements under the Uniform Commercial Code.
Upon receipt of each Rental Device, you will examine each Rental Device, and unless you notify Modas Systems within five business days of your receipt of a Rental Device to any issue with a Rental Device, each Rental Device is deemed to be in good working order at the time of receipt. In the event that any Rental Device delivered to you is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, you will immediately notify Modas Systems in writing and pay Modas Systems a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current Modas Systems list price, or (2) after such 12 month period, 80% of such list price. This obligation does not apply to any damage to a Rental Device that is covered by the manufacturer’s warranty.
Rental Device Usage
You will ensure that: (a) each Rental Device will only be used in a careful and proper manner and in accordance with the written instructions provided with it by Modas Systems, as may be updated by Modas Systems or the manufacturer of the Rental Device from time to time; (b) each Rental Device will be used with due care and will not be defaced, modified, or used or operated in any manner or for any purpose in violation of any federal, state, or local law or regulation; (c) each Rental Device must remain within the United States and may not be exported or re-exported to any country contrary to U.S. export laws; (d) any regulatory or certification markers affixed to a Rental Device may not be removed, defaced, or otherwise obstructed; and (e) each Rental Device will only be repaired subject to Modas Systems’ express written authorization and in accordance with Modas Systems’ instructions and requirements.
Return or Purchase Rights Returns
When you return a Rental Device, you agree to return a fully functional and non-damaged Rental Device to Modas Systems, at your risk and cost, and you agree that, to the extent that you do not do so, you will be obligated to pay Modas Systems a thirty-five dollar ($35.00) re-stocking fee. You agree to pay all shipping and handling charges related to any Rental Device and related hardware returns.
All Rental Devices and related hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Rental Device. At our discretion, we may decline your return or charge you an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.
Before returning any Rental Device or hardware that has data in its memory, please transfer all files you wish to retain to another file source. Once the hardware is returned, your files cannot be recovered and you release us of any liability for any lost, damaged, or destroyed files, data, or other information.
You may purchase a Rental Device at any time following 12 months from the date you received the Rental Device. You agree to purchase the Rental Device for 80% of the Rental Device’s then-current Modas Systems list price shown on Modas Systems’s web.
If you are obligated to return or purchase a Rental Device subject to this Return or Purchase Rights section of this Rental Agreement, and you have not returned a Rental Device or you have defaulted in any obligation to pay the purchase price due for a Rental Device to be purchased, Modas Systems may, in addition to those remedies available at law, in equity, or as otherwise set forth in this Agreement, take possession of any or all Rental Devices without demand, notice, or legal process, wherever each Rental Device may be located, and you hereby waive any and all damages occasioned by that taking of possession.
EACH RENTAL DEVICE AND ANY TELEPHONE HARDWARE PURCHASED IN CONNECTION WITH THIS RENTAL AGREEMENT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND MODAS SYSTEMS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. MODAS SYSTEMS MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY RENTAL DEVICE WILL BE DELIVERED TO YOU BY A PARTICULAR DATE OR IS FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF ANY RENTAL DEVICE SHALL BE BORNE SOLELY BY YOU.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT MODAS SYSTEMS CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
You authorize us to collect any payment owed by you hereunder from your payment method, as provided in your Modas Systems® Equipment Plan Purchase Agreement. This Rental Agreement, which is subject to and incorporates by reference the Modas Systems® Equipment Plan Purchase Agreement constitutes the complete, final, and exclusive embodiment of the entire agreement between you and the Company regarding the Rental Services. In signing the Agreement, the undersigned represents to Modas Systems that the undersigned has full power and authority to perform all of its obligations hereunder. This Rental Agreement is the binding obligation of the undersigned, enforceable against the undersigned in accordance with its terms.
Modas Systems may, in its discretion, update or change the terms and conditions of this Rental Agreement, and the version of this Rental Agreement applicable to each Rental Device, is the version of this Rental Agreement then in effect at the start of the rental for that Rental Device, including the start of the rental for an upgrade Rental Device. This Phone Rental/Lease Program is offered and available to United States residents only. Customer must agree to a Service Commitment Period for Modas Systems Office Services with an Initial Term of at least 24 months to be eligible to participate in the Phone Rental/Lease Program.
Compliance and Administrative Cost Recovery Fee
Modas Systems Compliance and Administrative Cost Recovery Fee:
The Modas Systems Compliance and Administrative Cost Recovery Fee (“CRF”) is a fee that Modas Systems charges in order to recover the various costs and expenses that it incurs in connection with:
- complying with legal, regulatory, and other requirements, including without limitation federal, state, and local reporting and filing requirements;
- responding to subpoenas, civil investigation demands, and other official requests, and otherwise assisting with official investigations;
- reporting and managing payments to third party telecommunications services providers; and
- acquiring and protecting intellectual property, including without limitation through the filing and maintenance of patents, trademarks, and other proprietary rights.
The CRF is not a tax, nor is it mandated by any level of government or government agency.
Last Updated: 11.01.2019
911 Fee: This is a charge imposed by local governments to help pay for emergency services such as fire and rescue.
Effective Date: October 2019
State & Local Taxes
State, Local & Provincial Taxes: These taxes are imposed by state (US) or provincial (CAN), local, and municipal governments.
Effective Date: October 2019
Modas Systems Vendor Terms and Conditions
October 01, 2019
- SCOPE OF AGREEMENT AND SERVICES.
- 1 These terms and conditions are made a part of the Agreement between Vendor and Modas Systems and governs those statements of work, purchase order, or similar order documents executed by the Parties pursuant to such Agreement (collectively referred to as “SOWs”). The Agreement will not give rise to any obligation on the part of Modas Systems to obtain Services from Vendor unless and until one or more SOWs are entered into in accordance with this Section. Unless otherwise agreed to in writing by the Parties, no SOW is effective until signed by an authorized representative of Modas Systems. Upon signing and delivery by an authorized representative of Modas Systems, each mutually agreed-upon SOW is deemed to be incorporated into, and made a part of, this Agreement. Some terms and conditions may not be applicable to the Services.
- 2 No Minimums. Unless otherwise expressly set forth in an applicable SOW, nothing in this Agreement requires Modas Systems to make any minimum level of purchases.
- 3 Procurement by Modas Systems Affiliates. Modas Systems may procure Services under this Agreement for its own account or on behalf of one or more Modas Systems affiliates or subsidiaries (together, “Affiliates”). In addition, any Modas Systems Affiliate may procure Services directly under this Agreement pursuant to any SOW that satisfies the requirements of this Agreement, except that such SOW will identify such Modas Systems Affiliate and all such SOWs must be signed by an authorized representative of such Modas Systems Affiliate. Such Modas Systems Affiliate will have all rights and obligations under such SOW and Vendor will look solely to and be responsible to such Affiliate in connection with the performance of such SOW.
- 4 Services Generally. Vendor will perform the Services and provide the deliverables specified in each SOW (the “Deliverables”) in accordance with the specifications, schedules and other provisions set forth in such SOW and this Agreement. If Deliverables contain the delivery of Product(s), “Product(s)” means the goods and materials, identified in the applicable Order Form SOW, or applicable Vendor quote (whether or not specifically reference in the Order Form, SOW, or applicable Vendor quote), that are sold by Vendor pursuant to this Agreement. In its performance of Services and provision of Deliverables, Vendor will: (a) comply with all technical standards as set forth in the applicable SOW or otherwise established by Modas Systems from time to time; (b) attend any meetings and supply any and all reports as described in the applicable SOW; (c) provide Services in a manner that meet or exceed any service levels set forth under the applicable SOW; and (d) provide all Services and Deliverables on time and within budget. If there are ancillary services, functions, responsibilities or tasks not specifically described in a SOW that are required for the proper performance and provisions of the Services under such SOW or that are an inherent part of, or a necessary subpart included in such Services, then such services, functions, responsibilities or tasks are deemed to be implied by and included within the scope of the SOW to the same extent and to the same manner as if specifically described in the SOW, and thus included within the fees and other amounts to be paid under that SOW.
- 5 Title & Risk of Loss. If Product(s) are included, notwithstanding anything contrary in this Agreement, title and risk of loss or damage to the Product(s) shall pass from Vendor to Modas Systems upon completion of Services for Modas Systems’ end Customer, as specified in the applicable Order Form or SOW.
- 6 Changes. Either Party may propose a change to a SOW by submitting a proposed change order in writing to the other Party (each a “Change Order”). On any proposed Change Order submitted to Modas Systems by Vendor, Vendor will specify the effect, if any, of the proposed changes upon the price, timing and any other terms and conditions applicable to the affected Services. With respect to any proposed Change Order submitted by Modas Systems to Vendor, Vendor will evaluate such proposed Change Order as promptly as practicable and will complete such proposed Change Order by specifying the effect, if any, of the proposed changes upon the price, timing and any other terms and conditions applicable to the affected Services. No Change Order will be effective until executed by an authorized representative of each Party. Upon proper execution and delivery, each such Change Order will be deemed to be incorporated into, and made a part of, the applicable SOW and this Agreement.
All Services shall be paid for in accordance with Addendum A (Compensation and Reimbursement) and the applicable SOW. Except as authorized and ordered by and specifically set forth within a fully-executed SOW and as billed to Modas Systems in accordance with Addendum A hereto, Modas Systems shall not be obligated to compensate Vendor for work performed, items or data delivered, or costs or expenses incurred. In no event shall any fee, expense, or other amount become due and payable by Modas Systems unless such amount is billed to Modas Systems in accordance with the terms of this Agreement, Addendum A hereto, and the applicable SOW. In no event shall any such amount be due sooner than thirty (30) days after Modas Systems’ receipt of an invoice billing such amount that complies with the immediately foregoing sentence unless Modas Systems expressly agrees in writing to earlier payment terms. In the event that Modas Systems disputes any properly invoiced amount, the due date for payment of such amount shall be extended to ten (10) days after Vendor’s demonstration to Modas Systems’ satisfaction that such amount was incurred under the applicable SOW.
Vendor shall notify Modas Systems in writing immediately and in advance of any delay or anticipated delay in its performance of Services, the reason for and anticipated length of the delay, and an initial proposal for remedying the delay. The Parties may, in their sole discretion, extend the date of performance in a writing signed by both Parties. Vendor shall not be eligible under any circumstances for additional compensation due to any such extension of time unless otherwise agreed to in writing by Modas Systems in its sole discretion.
Modas Systems is not required to accept or pay for any Services or Deliverables unless and until they conform to all specifications and acceptance criteria required by Modas Systems. Acceptance of the Services or any Deliverable shall occur only upon Modas Systems providing written acceptance to Vendor; i.e. there shall be no deemed acceptance. Vendor acknowledges that Modas Systems’ payment in accordance with the SOW does not constitute acceptance. Such acceptance will occur only as stated in this Section 4 or a fully executed SOW.
- 1 Performance. Subject to Vendor’s representations and warranties hereunder, the manner and means by which Vendor chooses to complete the Services are in Vendor’s sole control. Vendor shall comply with, or exceed, the requirements in the Modas Systems Vendor Code of Conduct located at https://www.Modas Systems.com/legal/vendor-code-of-conduct.html, as may be updated from time to time. In performing the Services, Vendor shall provide its own equipment, tools and other materials at its own expense and shall determine the appropriate location, place and time for such performance. Modas Systems shall notify Vendor if Modas Systems believes that the performance or conduct of any person employed, hired, or retained by Vendor to perform under this Agreement is unsatisfactory. Within one business day of receiving Modas Systems’ notice, Vendor shall take such actions as necessary to implement a plan to remediate and substantially improve the performance or conduct of such person to Modas Systems’ satisfaction or shall reassign and replace such person. The Vendor represents and warrants that neither the Vendor nor any of its officers, employees or other persons associated with it (i) has been convicted of any offence involving slavery and human trafficking; and (ii) having made reasonable enquiries, to the best of its knowledge, has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking. The Vendor shall implement due diligence procedures for its own suppliers, subcontractors and other participants to ensure that there is no slavery or human trafficking in its supply chains.
- 2 Dedicated Personnel. Both Parties agree that continuity of Vendor’s personnel assigned to perform the Services is essential for timely completion and quality of the Services. To the extent it is commercially reasonable, those personnel assigned to perform the Services shall continue to do so. In the event that a change of personnel is required, Vendor shall: (a) immediately notify Modas Systems of such a change; (b) ensure that a full knowledge transfer occurs between new and incumbent personnel without cost to Modas Systems; and (c) ensure that any new personnel have the skills and experience necessary to perform the Services. Notwithstanding the foregoing, if a SOW identifies one or more “Key Personnel” Vendor shall maintain the same Key Personnel throughout the term of the SOW, except for changes due to: (i) Modas Systems’ request pursuant to Section 5.1 (Performance); or (ii) the resignation or termination of such personnel or other circumstances outside of Vendor’s reasonable control.
- 3 Subcontractors. Vendor shall perform the Services only through its employees, except as provided in this Section 5.3. Should there be any requirement for Services to be performed by third-parties (”Subcontractors”), Vendor shall first obtain prior written consent from Modas Systems procurement or legal and ensure that such Subcontractor executes a written agreement with Vendor containing provisions necessary to comply with Sections 6 (Customer CPNI and Customer Communications, 7 (Confidentiality) (Data Security and Customer Data), 8 (Proprietary Rights) and 9 (Representations, Warranties and Conditions) of this Agreement. Vendor shall at all times be responsible for the acts and omissions of Subcontractors and personnel directly or indirectly employed by them and the performance of all the Services, whether performed by Vendor or its Subcontractors. This Agreement shall not give rise to any contractual relationship between Modas Systems and a Subcontractor. Modas Systems shall not undertake any obligation to pay or to be responsible for the payment of any sums or provision of any amenities to any Subcontractor or its employees or personnel. Vendor shall indemnify Modas Systems and hold Modas Systems harmless against all losses, damages, expenses and costs incurred or suffered by Modas Systems directly or indirectly attributable to any act or omission on the part of any Subcontractor.
- 4 Background Checks. Vendor acknowledges and agrees that background investigations shall be performed by the Vendor, to the extent permitted and conducted in accordance with applicable laws, for all Vendor personnel who: (a) perform Services onsite at Modas Systems’ or Customer’s facility; whether or not escorted; or (b) have or will gain access to any of Modas Systems’ or Customer’s information technology systems. Vendor will obtain written consents from such personnel, on forms provided by or otherwise acceptable to Modas Systems, as may be necessary to conduct such investigations. Vendor will provide executed copies of such consents to Modas Systems promptly upon Modas Systems’ request.
- CUSTOMER CPNI AND CUSTOMER COMMUNICATIONS.
Vendor acknowledges and agrees that notwithstanding anything to the contrary in this Agreement or any SOW, it shall not receive or be granted access to: (a) any data of or relating to the existing, former, or prospective customers of Modas Systems or its Affiliates (“Customers”) that constitutes, or, in Modas Systems’ sole discretion, might constitute “Customer Proprietary Network Information,” as defined under 47 U.S.C. § 222 and regulations and guidance promulgated pursuant thereto (“Customer CPNI”); or (b) the communications (or the content thereof), media, or other data sent, received, and/or stored by Customers through the services provided by Modas Systems or its Affiliates (“Customer Communications”). Vendor represents and warrants that it shall not require any Customer CPNI or Customer Communications, or any access thereto, to provide the Services and meet its obligations under this Agreement and the SOWs, and acknowledges and agrees that in no event shall Vendor’s inability to receive or access such data excuse Vendor’s performance of any of its obligations under this Agreement or any SOW or any delay in performing any such obligations. Vendor represents and warrants that in the event that it receives any Customer CPNI or Customer Communications or access thereto, it shall immediately provide notice to Modas Systems of such receipt or access.
- CONFIDENTIALITY AND SECURITY.
- 1 Modas Systems Confidential Information. Modas Systems may from time to time provide or communicate to Vendor, or Vendor may otherwise receive or gain access to, certain information, including but not limited to personally-identifiable information (“PII”) or information or data of or related to the existing, former, or prospective customers of Modas Systems or its Affiliates (“Customer Data”); Modas Systems’ or its Affiliates’ employees, officers, directors, agents, contractors, business partners, or vendors; or Modas Systems’ or its Affiliates’ operations, business plans, legal compliance, strategies, and/or intellectual property (collectively, the “Information”). Other than PII and Customer Data, which shall in all events constitute “Information” regardless of the following circumstances, “Information” shall not include information: (a) lawfully developed or received by Vendor free of restriction from another source having the right to so furnish such information; (b) after it has become generally available to the public without breach of this Agreement or violation of any law; or (c) that, at the time of receipt by Vendor, was already known to Vendor, and free of restriction, as evidenced by documentation in Vendor’s possession.
- 2 Disclosure, Access, and Use Restrictions. In addition to any other confidentiality or security obligations that apply to Information, Vendor shall hold all Information in strict confidence and shall not disclose or grant or allow access to, or permit the disclosure or granting of access to, any Information, except: (a) to those of its own employees to which such disclosure, granting of access, or permission of disclosure or granting of access is necessary for Vendor to perform its obligations under this Agreement or a SOW; (b) as approved in advance in writing by a duly authorized representative of Modas Systems; or (c) as necessary to comply with a valid and binding court order, subpoena, or other legal process; provided that Vendor provides Modas Systems with: (i) immediate notice of such process and the potential disclosure; (ii) ample opportunity to object to or otherwise challenge such process or disclosure; and (iii) all information, cooperation, and support necessary to enable Modas Systems to object to or otherwise challenge such process or disclosure (a disclosure under this clause (c) shall herein be referred to as a “Legal Process Disclosure”). Vendor shall not use the Information (or any data compiled from it), except to perform its obligations under this Agreement or a SOW. In addition to the foregoing, Vendor shall limit all use, access, and disclosure of, and all granting of access to, the Information to that which is necessary to serve the purpose for which the use, access, disclosure, or granting of access is made. Furthermore, before providing Information or access thereto to any party, Vendor shall ensure that such party is bound to restrictions and procedures sufficient to ensure compliance with this Section 7 and Section 6. Vendor shall be fully responsible and liable (including without limitation jointly and severally liable), for any acts or omissions of any party receiving Information or access thereto from, through, by virtue of, or on behalf of Vendor that would, if performed by Vendor itself, violate this Section 7 or Section 6. Vendor agrees, at its sole cost and expense, to undertake all measures (including but not limited to the potential immediate initiation of any court proceedings), to restrain such parties from engaging in any such acts or omissions. Vendor shall either return to Modas Systems or – using industry-standard secure data destruction methods – destroy and purge from all systems, media, applications, etc. any and all Information within ten (10) days of the earlier of: (aa) the end of Vendor’s need to possess the Information to perform under this Agreement or a SOW; (bb) Modas Systems’ request; or (cc) expiration or termination of this Agreement. Upon such return or destruction, Vendor shall provide to Modas Systems a certification of such complete return or destruction signed by a duly authorized representative of Vendor.
- 3 Legal Compliance. Vendor shall comply with all applicable Laws in its disclosure of, granting of access to, use of, accessing of, and/or possession of the Information. Vendor shall not disclose, grant access to, or use the Information in any manner that would cause Modas Systems or its Affiliates to violate any Law.
- 4 Confidentiality of Work Product. In addition to the other restrictions set forth in this Section 7 or under any separate agreement between the Parties, Vendor shall not disclose to any third party, including but not limited to any Subcontractor, without the prior written consent of Modas Systems, any of: (a) the Deliverables, (b) Vendor’s works of authorship, discoveries, inventions, or innovations resulting from performance of the Services; (c) any work in progress or Deliverables created, issued, or delivered to Modas Systems under any SOW; or (d) any proposals, research, records, reports, recommendations, manuals, training materials, findings, evaluations, forms, reviews, information, data, computer programs, or software originated or prepared by Vendor for or in the performance of the Services (the items listed in clauses (a), (b) (c) and (d) being hereinafter referred to collectively and severally as “Work Product”).
- 5 Terms of Agreement. Without the express prior written consent of Modas Systems Corporate Communications, Vendor shall not make use of any Modas Systems trademark, trade name, or logo, or publicize or disclose the existence or terms of this Agreement to any third party (other than its accountants and attorneys) by any method including but not limited to any news release, advertisement, publicity or promotional material, except as required by law or a valid court order.
- 6 Safeguarding of Information. Vendor shall protect Information using industry-standard safeguards and shall use at least as great a standard of care in protecting Information as it uses to protect its own data of like character, but in no event less than a reasonable degree of care. Vendor agrees that such safeguards shall include its implementation of a comprehensive information security and privacy program sufficient to ensure compliance with this Section 7 and training, on at least an annual basis, of all Vendor workforce members who might receive or gain access to Information covering such program.
- 7 Security Incident Notification. Vendor shall immediately (however in no event later than required by any applicable law, regulation, code, or ordinance), provide written notice to Modas Systems of any event or occurrence of which Vendor becomes aware that: (a) results, or could reasonably be suspected to result, directly or indirectly, in any: (i) disclosure of, access to, or use of the Information not authorized under this Section 7; or (ii) compromise to or breach of the security, privacy, integrity, or confidentiality of the Information; or (b) gives rise or could reasonably give rise to any notification or reporting obligation (collectively, “Security Incidents”).
- 8 Security Incident Response. In the event of any Security Incident, Vendor shall promptly do all of the following, at its own expense, without destroying any evidence related to the Security Incident: (a) provide all reasonable information, cooperation, and assistance requested by Modas Systems in investigating, addressing, or reporting the Security Incident; (b) take all available steps to contain and investigate the Security Incident, including without limitation conducting a root cause analysis; (c) report its findings to Modas Systems and keep Modas Systems promptly informed of new developments or discoveries as they occur during the course of the investigation; (d) provide Modas Systems with a remediation plan to address the Security Incident and prevent any further Security Incidents; (e) remediate such Security Incident in accordance with such remediation plan; (f) conduct a forensic investigation to determine what systems, data, and information have been affected by the Security Incident and provide Modas Systems an un-redacted copy of any report issued by the investigators; and (g) cooperate with any law enforcement or regulatory officials investigating the Security Incident. Without limiting the foregoing and notwithstanding anything in this Agreement or any SOW to the contrary, Modas Systems shall in all events determine, in its sole discretion: (i) whether and to whom to report the Security Incident or to provide notice of any kind of the Security Incident; (ii) whether any such reporting or notice should be provided by Modas Systems or Vendor; (iii) whether Modas Systems, the Vendor, or both should be identified in connection with any such reporting or notice and (iv) the content of any such reporting or notice.
- 9 ISO/IEC 27002 Compliance. Vendor shall, at its sole cost and expense, adhere to and demonstrate adherence to applicable privacy laws and ISO 27002 requirements, implement changes to ISO 27002 to remain in compliance, and demonstrate such compliance (including without limitation by participating in and passing an annual test by a reputable third party reasonably acceptable to Modas Systems) upon request if it: (a) gains access to any production system or network of Modas Systems; or (b) gains access to PII or Customer Data.
- 10 PII and Customer Data Export and Access Restrictions. Notwithstanding anything to the contrary in this Agreement or any SOW, Vendor represents and warrants that it shall not: (a) capture, copy, record, monitor, export (as hereinafter defined), retain, preserve, or store PII or Customer Data or (b) permit any “live” human access to any PII or Customer Data and shall limit all access to PII or Customer Data to the processing or analyzing of such data by Vendor’s applications. “Export” shall mean and include without limitation to print; record; render to image; copy; export to or store on computer or external storage devices or media; download or upload; or transmit externally in any way (including without limitation via email, oral communication, text/SMS or instant message, data transfer, or facsimile.
- 11 Leads.
- 11.1 For US-Only Lead Services. Vendor represents and warrants that US-only leads, sourced in compliance with all applicable laws from US-only data sources will be provided. Vendor shall indemnify Modas Systems against third party claims resulting from breach of this warranty.
- 11.2 8. For non-US Lead services. The Supplier warrants and represents that: (a) the information provided to Modas Systems by or on behalf of the Supplier regarding any and all personal data of individuals or business contacts provided by Supplier (“Supplier Personal Data”) is complete and accurate, including any information: (i) provided as part of any due diligence or audit conducted prior to or following the date of this Agreement; (ii) any information regarding notice, consents, limitations and the purposes for which Supplier Personal Data may be Processed; (b) it has done all things necessary to ensure compliance with the General Data Protection Regulation(“GDPR”), Privacy and Electronic Communications Directive 2002/58/EC, Personal Information Protection and Electronic Documents Act, CAN-SPAM Act, and any other laws in any jurisdiction from which you may provide (“ Privacy Laws”) Supplier Personal Data; (c) it has provided all individuals whose personal data including any contact information you share with Modas Systems with information necessary to ensure fair Processing (such as information about the purposes of Processing, the transfer of Personal Data to Modas Systems and onward transfer to Modas Systems Affiliates), including without limitation any data collected via websites or cookies, to allow Modas Systems to process Supplier Personal Data in accordance with its rights under this Agreement; (d) it has obtained, and can demonstrate on request, all necessary consents (where applicable) in relation to Supplier Personal Data, including without limitation in relation to cookies and other similar tracking technologies as required under Privacy Laws; (e) the Supplier Personal Data does not contain any Sensitive Personal Data or Personal Data concerning any Data Subject under the age of 18 years old, and Supplier shall not pass such data to Ring Central without Modas Systems’ prior written consent; (f) any transfers of Supplier Personal Data to Modas Systems are in compliance with Privacy Laws; (g) it shall promptly inform Modas Systems (and keep Modas Systems informed) of the exercise by any individual of their rights under Privacy Law, including without limitation the right to require the rectification or erasure of Supplier Personal Data, the restriction of the Processing of Supplier Personal Data and the portability of Supplier Personal Data; and (h) at all times it complies with rules and regulatory guidelines (including without limitation mobile and social media platform rules and policies and onward transfer of personal information) applicable to its collection and delivery of Supplier Personal Data to Modas Systems, for Modas Systems’ use in accordance with this Agreement (the “Rules”). The Rules include without limitation: (i) all rules and guidelines, as applicable to the Territory, issued by the United States Federal Trade Commission; (ii) Self-Regulatory Principles of the Digital Advertising Alliance, including but not limited to the European Interactive Digital Alliance; (iii) Code of Conduct of the Network Advertising Initiative; (iv) Principles of the European Interactive Digital Alliance; (v) Internet Advertising Bureau; and (vi) Direct Marketing Association. Supplier shall indemnify Modas Systems and keep Modas Systems fully indemnified from and against all loss, harm, cost (including reasonable attorney’s fees), fines, expenses and liabilities that Modas Systems may suffer or incur as a result of Supplier’s breach or non-compliance with these requirements.
- 12 Audit Rights. Upon seven (7) or more days’ notice to Vendor, Modas Systems may conduct a detailed audit or compliance or security assessment of Vendor and its relevant systems and facilities to determine Vendor’s compliance with this Section 7, which such audit or assessment may include an on-site assessment during normal business hours of Vendor’s risk and security programs and records of compliance; Vendor agrees to provide all reasonable information, cooperation, and assistance that Modas Systems requests in connection with any such audit or assessment and agrees to ensure that the scope of such audit or assessment may, if requested by Modas Systems extend to Subcontractors or other parties who have received Information or access thereto from, through, by virtue of, or on behalf of Vendor.
- 13 Survival and Liability. This Section 7 and Section 6 shall survive the expiration or any earlier termination of this Agreement for a period of three (3) years, except that Vendor’s obligations under such Sections with respect to PII and/or Customer Data shall survive for as long as such data is within Vendor’s possession, custody, or control. For clarity, Vendor’s liability resulting from or arising from breach of this Section 7 and/or Section 6 shall not be subject to any limitation of liability.
- PROPRIETARY RIGHTS.
- 1 Rights to Information. Vendor acknowledges and agrees that all Information and all property (including without limitation all trademarks, servicemarks, trade dress, copyrights, patents, patent applications, inventions, trade secrets, and other intellectual property (“IP”)) of Modas Systems shall remain the property of Modas Systems, and no license, express or implied, to use any of Modas Systems’ IP or the Information is granted under this Agreement, except as may be specifically required to perform the Services under this Agreement for Modas Systems.
- 2 Works Made for Hire. Vendor hereby agrees that any Work Product which is a work of authorship (including but not limited to any computer program or software) and has been created by Vendor based on work performed by Vendor under this Agreement shall, to the maximum extent permitted under applicable law, regulation, code, or ordinance (each, a “Law”) (including but not limited to 17 United States Code Section 101), be a “work made for hire.” Such Work Product shall be deemed to be a work that has been specially ordered or commissioned by Modas Systems for use as, if applicable, a contribution to a collective work, as part of an audiovisual work, as a translation, as a supplementary work, as a compilation and/or as an instructional text. To the extent that any such Work Product is not a “work made for hire” under applicable law, then all of Vendor’s rights, title and interests in and to such Work Product, together with all IP rights embodied therein, shall be assigned by Vendor to Modas Systems pursuant to Section 8.3 below.
- 3 Assignment of Work Product. All Work Product shall be promptly communicated to Modas Systems. As consideration for the compensation to be paid to Vendor under this Agreement, Vendor hereby assigns to Modas Systems all of Vendor’s rights, title and interest in and to all Work Product, and to any and all IP rights therein or relating thereto, including but not limited to all patents and copyrights which have been or may be obtained with respect to such Work Product, effective immediately upon their conception, origination, creation, preparation or discovery thereof and determined regardless of the medium of expression thereof. Vendor shall communicate to Modas Systems or its representatives all facts known to it respecting any and all Work Product. Further, whenever requested, Vendor shall sign all lawful papers and otherwise perform all acts necessary or appropriate to enable Modas Systems to obtain and enforce all available legal protections for all such Work Product in all countries. All Work Product shall become the exclusive property of Modas Systems, and Vendor shall be deemed to have assigned and relinquished all rights, title and interest in and to such Work Product by virtue of this Section 8.3. All rights in, use of, and goodwill in all Work Product and all IP of Modas Systems or rights therein or relating thereto shall inure solely to the benefit of Modas Systems.
- 4 Vendor Pre-Existing Intellectual Property. Modas Systems acknowledges that Vendor may claim certain ownership rights in or to certain know-how, trade secrets, plans, designs and construction information, processes and flowcharts, formulas, manufacturing techniques, discoveries, inventions and ideas, product specifications, machinery, drawings, photographs, computer source codes, equipment, devices, tools and apparatus and any other engineering or other technical information that is in existence prior to the date of the Agreement, whether or not protected by law (“Pre-Existing Intellectual Property”). To the extent that any such Pre-Existing Intellectual Property is: (a) incorporated into the Work Product; and (b) has expressly been identified to Modas Systems in writing prior to the commencement of any Services hereunder, such Pre-Existing Intellectual Property shall remain the property of Vendor, and Vendor hereby grants, on behalf of itself and its affiliates, to Modas Systems and its Affiliates a royalty-free, fully paid-up, non-exclusive, unrestricted, unconditional, irrevocable, perpetual, worldwide right and license, with the right to sublicense, to use, execute, reproduce, display, perform, distribute copies of, modify and prepare derivative works based upon, such Pre-Existing Intellectual Property solely as may be necessary for Modas Systems to use the Work Product, including but not limited to Modas Systems’ right to provide such Pre-Existing Intellectual Property, as embedded in final Deliverables comprising the Work Product, to other third parties. This right and license also includes the right to make, have made, use, sell, offer to sell, import and otherwise dispose of such Pre-Existing Intellectual Property under any patents that Vendor or any of its affiliates owns, controls or otherwise possesses a right to grant any rights thereunder or thereto.
- 5 No License to Modas Systems Intellectual Property. Nothing in this Agreement shall be deemed to grant any rights (whether express, or by way of implication or estoppel or otherwise) under any IP of Modas Systems or any of its Affiliates.
- REPRESENTATIONS, WARRANTIES AND CONDITIONS
- 1 Right to Perform Services. Vendor represents and warrants that: (a) it and, as applicable, all Subcontractors have the full right, power and authority – and possess all necessary or appropriate licenses, certifications, permits, and authorizations – to enter into this Agreement and perform the Services and its other obligations hereunder; (b) its execution of this Agreement and its performance of the Services shall not result in a breach of or default under any other agreement to which Vendor is a party or by which it is bound; (c) it and all workforce members, Subcontractors, and other parties used to perform under this Agreement o an SOW shall comply with all Laws and permit requirements, including but not limited to those relating to employment, labor, safety, privacy, advertising, marketing, consumer protection, or the environment and (d) the person(s) executing this Agreement and any SOW on its behalf is duly authorized to do so and, upon such execution, Vendor shall be bound to this Agreement or the SOW, as applicable.
- 2 Warranty.
- 2.1 All Product(s) are sold subject to the express warranty terms, if any, specified by the original equipment manufacturer (“OEM”) of the Product(s). Vendor shall pass through all OEM warranty terms to Modas Systems for purchased Product(s), for pass through by Modas Systems to the Customer. Any software supplied to Customer in connection with the Product(s) is supplied subject to the provisions of the OEM’s licensing terms.
- 2.2 Vendor represents and warrants, for a period of ninety (90) days from delivery, unless such longer term is indicated in the applicable Order Form, SOW, or Vendor quote, that all Product(s) shall be provisioned in accordance with the terms of this Agreement (unless otherwise indicated by Modas Systems in writing). If Vendor fails to provision in accordance this Agreement, then a return of such Product(s) shall be deemed a Warranty Claim (as defined in Section 8.3 (Warranty Claims and Other Returns) below), except that the remedies described herein for such a Warranty Claim pursuant to this subsection 8.2.2 shall be fulfilled only by Vendor with no involvement from OEM.
- 2.3 Vendor represents and warrants that title to all Product(s) shall be free from all security interests, liens, and encumbrances at the time of delivery to Customer. The foregoing shall not be construed, and the Vendor does not provide, any warranty against infringement of a third-party intellectual property right. However, the OEM may provide such warranty directly to the Customer, and if permitted by OEM, Vendor shall pass such warranty to Modas Systems, for pass through by Ring Central to the Customer, as set forth in Section 8.3 (Warranty Claims and Other Returns).
- 2.4 Warranty Claims and Other Returns.
- 2.4(i) Warranty Claims. Modas Systems shall promptly notify Vendor if Modas Systems’ technical support resources have determined that a Product(s) supplied to Customer is defective in quality or functionality within the warranty period (the “Warranty Claim”), and Vendor shall be fully responsible for processing such claims. Upon receipt of notification of any Warranty Claim from Modas Systems within the first ninety (90) days after receipt of the Product(s) by Customer, Vendor shall process such Warranty Claim per OEM procedures and ensure prompt shipment of a replacement Product(s) to Customer. Replacement Product(s) may be new or used as directed by OEM. Claims made after the first ninety (90) days from receipt of the Product(s) by Customer are subject to the applicable return processing fee payable by Modas Systems, and such return processing fee shall cover all shipping, handling, and processing of the return.
- 2.4(ii) For all Returned Product(s) (whether pursuant to a Warranty Claim or otherwise) Modas Systems will, on the Customer’s behalf, initiate an RMA, as defined below, request with Vendor that may be transmitted to Vendor through API or through Vendor ’s portal at Modas Systems’ sole discretion. Following an RMA request, Vendor shall issue an RMA number and issue a shipping label to Modas Systems via electronic exchange (an “RMA”).
- 2.4(iii) Product(s) Return Procedures. Upon receiving a Returned Product(s) pursuant to this Section 8.3 (Warranty Claims and Other Returns), Vendor shall: (a) transmit via the API an order receipt confirmation to Modas Systems along with the Returned Product(s)’s serial number and date received; (b) in the case of returns other than in connection with Warranty Claims, inspect as directed by the OEM; (c) in the case of Warranty Claims, initiate a warranty claim for the Product(s) with the OEM and, if within the first ninety (90) days after the Customer received the Product(s) or if after that time period but otherwise permitted by the OEM’s warranty terms, provide Customer a replacement Product(s); and (d) clear all configuration data and other information.
- 3 Conflicts of Interest; Compliance with Laws. Vendor represents and warrants that it shall not, during the term of this Agreement, accept any work or enter into any agreement or assume any obligation inconsistent or incompatible with Vendor’s obligations under this Agreement or that might prevent, delay, or hinder its performance under this Agreement or any SOW. In performing its obligations under the agreement, the Vendor shall and shall ensure that each of its subcontractors shall comply with all applicable laws, statutes, regulations in force from time to time, including without limitations taking and take reasonable steps to ensure that there is no modern slavery or human trafficking in the Vendors or subcontractors supply chains or in any part of their business.
- 4 Vendor Anti-Corruption Laws Representations and Warranties
- 4.1 Vendor understands that Modas Systems is required to and abides by the United States Foreign Corrupt Practices Act of 1977, as amended, U.K. Bribery Act of 2010, and similarly applicable anti-corruption and anti-bribery laws (“Anti-Corruption Laws”) while working on behalf of Modas Systems. Vendor represents and warrants that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an inducement or reward for favorable action or forbearance from action or the exercise of influence (i) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (ii) to any political party, official of a political party, or candidate, (iii) to an intermediary for payment to any of the foregoing, or (iv) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under this agreement.
- 4.2 Vendor understands that Modas Systems may immediately suspend payment, in its sole discretion and without notice, if the actions or inactions of Vendor become subject to an investigation, formal or informal, regarding potential violations of the Anti-Corruption Laws. Moreover, Vendor understands that if Modas Systems determines that Vendor failed to comply with the provisions of any applicable law, including the Anti-Corruption Laws, Modas Systems may immediately terminate this Agreement and any payments due thereunder, in its sole discretion and without notice.
- 4.3 Vendor warrants and covenants that all persons acting on its behalf will comply with all applicable laws in connection with all work on behalf of Modas Systems, including but not limited to the Anti-Corruption Laws, and similar laws prevailing in the country(ies) in which Vendor has its principal places of business, performs work on behalf of Modas Systems, and the Territory.
- 4.4 Vendor represents and warrants that none of its senior employees or any immediate family member of such senior employees, is presently (or has been recently) an official or employee of any foreign (non-U.S.) government, state-run or state-owned or controlled enterprise or entity, or political party, or a candidate for political or public office.
- 4.5 Vendor further warrants, represents, and covenants that should it learn or have reason to suspect any breach of the covenants in this Section, it will immediately notify Modas Systems.
- 4.6 Modas Systems shall be allowed reasonable access to the Vendor’s books and records, and shall have the right to audit Vendor on a periodic basis and Vendor agrees to provide Anti-Corruption Laws compliance certificates to Modas Systems, upon request.
- 4.7 Vendor agrees to fully indemnify Modas Systems for any act or failure to act that result in an allegation, investigation (whether internal or government-initiated), or prosecution of Modas Systems related to the Anti-Corruption Laws, including all such associated costs, fees, penalties, fines, consequential damages, settlements, and related financial incurrences of Modas Systems.
- 5 Open Source. Vendor hereby agrees, and shall cause its affiliates and Subcontractors to agree, not to incorporate, link, distribute or use any third party software or code in conjunction with any Work Product or Deliverable provided to Modas Systems (if any) in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to any Modas Systems software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any Modas Systems IP or proprietary rights. Without limiting the generality of the foregoing, neither Vendor nor any of its affiliates or Subcontractors shall incorporate, link, distribute or use, in conjunction with the Work Product or any Deliverable provided to Modas Systems, any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Affero GPL (AGPL), European Community Public License (ECPL), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause any Modas Systems software (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. Without limiting the generality of the foregoing, neither Vendor nor any of its affiliates or Subcontractors shall use any software or technology in a manner that will cause any IP owned or controlled by Modas Systems or any of its Affiliates (or to or for which Modas Systems or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical) (each an “Open Source License”). These restrictions, limitations, exclusions and conditions shall apply even if Modas Systems or any of its Affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. No act by Modas Systems or any of its Affiliates that is undertaken under this Agreement shall be construed as being inconsistent with the intent to not cause any IP owned or controlled by Modas Systems or any of its Affiliates (or to or for which Modas Systems or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License.
- 6 Work Product Representations and Warranties. Vendor represents and warrants that: (a) the Work Product shall be an original work of Vendor and in performing the Services and furnishing Work Product; (b) Vendor has not transferred or assigned to any third party any proprietary rights in the Work Product; (c) no portion of the Work Product shall be subject to any lien, encumbrance, security interest, or other restriction of any nature; (d) Vendor has all rights necessary to grant to Modas Systems licenses to Vendor’s Pre-Existing Intellectual Property; (e) Vendor has the full right to assign to Modas Systems all of Vendor’s rights, title and interest in – and all IP in – and to all Work Product; (f) Modas Systems shall receive full title to, right to and in, and ownership of all Work product and shall be free to use all Work Product without restriction; (g) Vendor has complied with all Laws in acquiring or generating any and all Work Product; (h) all Work Product shall be free from defects in workmanship and materials and shall be fit for the purposes for which such Work Product is intended; and (h) no Work Product or other content or materials provided or used by Vendor or any of its personnel or Subcontractors (or Modas Systems’, its Affiliates, or their officers’, directors’, or employees’ use thereof) shall: (i) violate any Law; (ii) infringe or misappropriate any IP right; (iii) violate any right (including without limitation any right of publicity or privacy); (iv) defame any party; or (v) constitute or include any tortious element or content. In addition to all other remedies available to Modas Systems under this Agreement or any SOW, as a remedy for breach of any of the foregoing representations or warranties, Modas Systems may elect, at Modas Systems’ option: (aa) the replacement of non-conforming Work Product, which shall be accomplished by Vendor at no charge to Modas Systems; (bb) repair, modification or adaptation of the non-conforming Work Product at Vendor’s expense; or (cc) return of the non-conforming Work Product to Vendor and a full refund to Modas Systems of the aggregate purchase price paid therefor.
- 7 Services Warranty. Vendor represents and warrants that all Services provided under this Agreement shall be performed in a timely manner and in accordance with highest applicable industry, government and professional standards and the highest standards of professionalism and efficiency in Vendor’s industry. As a remedy for breach of the foregoing warranty, Modas Systems may elect, at Modas Systems’ option: (a) the re-performance of any Services not in compliance with this warranty at no additional cost to Modas Systems or (b) refund to Modas Systems of the purchase price of the Services. Notwithstanding the foregoing, this Section 9.5 in no way limits the other remedies available to Modas Systems under this Agreement.
- 8 No Representations of Agency. Vendor represents and warrants that it shall refrain from stating, representing, implying, suggesting, or otherwise communicating in any way that it has the authority or right to act, or is acting as, Modas Systems’ agent or is otherwise authorized to act on Modas Systems’ behalf or to bind, commit, or obligate Modas Systems in any way. Vendor agrees that Modas Systems and its inside or outside accountants, attorneys, or other advisors or agents may, upon ten (10) days’ advance notice to Vendor, audit and inspect Vendor’s documents, contracts, books, and records in order to determine whether Vendor’s compliance with this Section 9.6
- 9 Cease Services Orders. Notwithstanding anything to the contrary herein, Modas Systems shall, in addition to all other remedies under this Agreement or the applicable SOW, have the right to order Vendor to immediately cease or suspend providing the Services or otherwise performing under any SOW. Vendor represents and warrants that it shall immediately comply with any such order.
- 10 Tax Adjustments. Vendor represents and warrants that it shall make all tax adjustments, withholdings, deductions, payments, and the like related to any payments made by Modas Systems hereunder, as required by Law, and shall otherwise ensure compliance with all federal, state, or local tax laws relating to the amounts paid or payable by Vendor hereunder.
- 11 Disclaimer and Limitation of Liability. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THIS SECTION 9, NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHER WISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR VENDOR’S OBLIGATIONS UNDER SECTIONS 6 (CUSTOMER CPNI AND CUSTOMER COMMUNICATIONS), 7 (CONFIDENTIALITY AND SECURITY), 8 (PROPRIETARY RIGHTS) 9 (REPRESENTATIONS, WARRANTIES AND CONDITIONS), AND 10 (INDEMNIFICATION), NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY RESULTING OBLIGATIONS, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION, AND EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. MODAS SYSTEMS’S TOTAL LIABILITY (ARISING OUT OF ANY SINGLE EVENT OR IN THE AGGREGATE), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SOW(S) SHALL BE LIMITED AND CAPPED IN ITS ENTIRETY TO THE AMOUNTS INCURRED UNDER THE PARTICULAR SOW UNDER WHICH THE LIABILITY AT ISSUE AROSE. EACH PARTY AGREES THAT THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER EITHER PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY EITHER PARTY AND NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- 1 Vendor will, at its sole expense, indemnify, defend and hold Modas Systems, the Affiliates, and each of their respective directors, officers, employees, agents, and affiliates (collectively, “Indemnified Modas Systems Parties”) harmless from and against any and all claims, suits, actions, damages, settlements, losses, liabilities, penalties, fines, investigations, costs and expenses, including without limitation, reasonable attorneys’ fees and any costs of remediation, reporting, or notification arising out of any Security Incident, arising out of or in connection with:
- 1.1 facts, or alleged facts which, if proven, would constitute a breach by Vendor of any of the representations, warranties or covenants herein;
- 1.2 any other breach by Vendor or any of its personnel of any of Vendor’s obligations under this Agreement;
- 1.3 the negligence or intentional misconduct of Vendor or any of its personnel;
- 1.4 any obligation of the Vendor to provide workers’ compensation benefits, employers’ liability, or similar benefits;
- 1.5 any and all obligations imposed upon Modas Systems or any of the Modas Systems Affiliates resulting from Vendor or any of its personnel being determined not to be an independent contractor or being determined to be a co-employer, joint employer or employee of Modas Systems or any Affiliate;
- 1.6 to the extent Product(s) are provided and an OEM provides Vendor with an indemnity based on the infringement, misappropriation, or other violation of any intellectual property rights of a third party by any such OEM’s Products, and provided OEM has agreed in writing that such indemnity may be made available by Vendor to its customers, Vendor will extend to Modas Systems the same terms under which such indemnity is provided from the OEM to the Vendor. Such indemnity terms will be added to this Agreement via amendment if they are not already included on the Effective Date, however adding the indemnity terms to this Agreement via amendment will not be considered a condition precedent required in order for Modas Systems to have the benefit of the indemnity. In the case of an infringement claim, the obligation to indemnify and defend shall be fulfilled by either Vendor or the OEM, as determined by the OEM’s agreement with Vendor;
- 1.7 the violation, infringement or misappropriation of any third-party intellectual property right by any of the: (a) Services, (b) Pre-Existing Intellectual Property licensed to Modas Systems under this Agreement, or (c) Work Product or Deliverable; provided however, that this obligation will not extend to infringements, violations or misappropriations of third-party rights caused by Modas Systems’ modification of any Pre-Existing Intellectual Property, Work Product or Deliverable following delivery to Modas Systems, unless such modification is performed by, authorized by, or at the request of Vendor or any of its personnel; and
- 1.8 any third-party claim with respect to bodily injury, death or damage to tangible property sustained as a result of the Services or Deliverables.
- 2 Procedures for Claims. Modas Systems will provide Vendor with the following in connection with any claim, suit or action for which Modas Systems or any Indemnified Modas Systems Party seeks defense or indemnity from Vendor under Section 10.1: (a) prompt written notice of such claim, suit or action; (b) sole control over the defense and settlement of such claim, suit or action, subject to the provisions of this Section; and (c) reasonable cooperation and assistance in connection with the defense and settlement of such claim, suit or action. Modas Systems’ failure to comply with its obligations under the preceding sentence will not relieve Vendor of its defense and indemnity obligations under this Agreement except to the extent that Vendor is prejudiced by such failure. Modas Systems may approve or reject any counsel proposed or selected by Vendor in connection with the defense or settlement of any such claim, suit or action. Modas Systems shall have the right to participate at its own expense in the defense of such claim or action, including any related settlement negotiations. No such claim or action shall be settled or compromised without Modas Systems’ express written consent, which consent may be withheld or conditioned by Modas Systems at its sole discretion, including requiring the execution of a full and complete release of all claims and actions made against the Indemnified Parties by each party bringing any such claims or actions. Modas Systems shall have the right to withhold from any payments due to Vendor the amount of Modas Systems’ actual and projected costs of defending or settling any such claim or action, plus any other reasonable additional amounts, as security for the performance by Vendor of its obligations under this Section 10.
- 3 Substitution of Non-Infringing Items. In the event that any of the Pre-Existing Intellectual Property licensed to Modas Systems under this Agreement, any of the Work Product, any of the Services or any Deliverable provided by or on behalf of Vendor is found to infringe, violate or misappropriate any third-party right, or is likely to do so in Modas Systems’ opinion, then Vendor will promptly, at its sole expense, either: (a) secure for Modas Systems the rights to continue using such infringing Pre-Existing Intellectual Property, Work Product, Services or Deliverables; (b) replace such item with a functionally equivalent item that does not infringe, violate or misappropriate any third-party right; or (c) modify such item so as to cause it not to violate, infringe or misappropriate any third-party right, but without reducing its functionality. If none of the foregoing options are commercially practicable, then in the case of Deliverables constituting goods, Vendor will refund the amounts paid by Modas Systems for such items, as depreciated on a straight-line basis over a period of 60 months from the date of acceptance. The foregoing will be in addition to, and not in lieu of, any other rights and remedies that Modas Systems may have under this Agreement, at law or in equity.
Vendor shall maintain at its sole expense during the term of this Agreement: (a) workers’ compensation insurance as prescribed by the law of the state or nation in which the Services are performed; (b) employer’s liability insurance with limits of at least $1,000,000 for each occurrence; (c) automobile liability insurance if the use of motor vehicles is required, with limits of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence; (d) if Vendor will have access to PII or Customer Data, cyber-liability insurance sufficient to cover any Security Incident with limits of at least $1,000,000 for each occurrence; (e) Commercial General Liability (“CGL”) insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits of at least $1,000,000 combined single limit for bodily injury and property damage per occurrence; $2,000,000 in the annual aggregate; and (f) in the event that Vendor’s employee(s) or Subcontractor(s) are providing Services on Modas Systems premises, a fidelity bond (which includes third party liability) insuring against the dishonest act(s) committed by its employees assigned to Modas Systems’ premises under this Agreement. Vendor shall maintain such fidelity bond in the amount of not less than $1,000,000. Vendor shall have all CGL and automobile liability insurance policies endorsed to name Modas Systems Incorporated as an additional insured. All insurance as listed above shall be primary with respect to Vendor’s activities and Modas Systems’ insurance policies will be non-contributing. Such policies shall contain a provision waiving the insurer’s right of subrogation against Modas Systems. Upon request, Vendor will furnish Modas Systems with certificates of insurance which evidence the minimum levels of insurance set forth above. Modas Systems shall be notified in writing at least thirty (30) days prior to cancellation of or any change in the policy. Insurance companies providing coverage under this Agreement must be rated by A-M Best with at least an A- VII rating.
- RELATIONSHIP OF THE PARTIES.
The Parties expressly intend and agree that: (a) Vendor is acting as an independent contractor and not as an agent, joint venture, employee, or partner of Modas Systems and nothing in this Agreement or any SOW shall create or be deemed to create any such relationship; (b) neither Party shall have or obtain the authority or right, whether express, implied, or otherwise, to assume or create any obligation, liability, commitment, or responsibility, express or implied, on behalf of, or in the name of, the other Party or to bind such other Party in any way; and (c) nothing in this Agreement or any SOW shall be construed as engaging or appointing Vendor as the sole provider of the Services or any other services or functions to Modas Systems or restricting Modas Systems from engaging other persons or entities to provide – or itself providing – the same or similar services or functions the Services or any other services or functions. Vendor understands and agrees that it shall not be entitled to any of the rights and privileges established for Modas Systems’ employees, including but not limited to medical, life insurance or disability coverage and paid vacation or sick pay. Vendor understands and agrees that Modas Systems shall not pay or withhold from the compensation paid to Vendor any sums customarily paid or withheld for or on behalf of employees for income tax, unemployment insurance, social security, workers compensation, or any other payroll or similar employment withholding tax, insurance or payment, and all such payments as may be required by Law are the sole responsibility of Vendor. Vendor understands and agrees that Modas Systems shall, when required, issue Vendor a Form 1099. Vendor shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Vendor’s performance of the Services and receipt of fees under this Agreement. Modas Systems shall have no responsibility for any of Vendor’s debts, liabilities or other obligations or for the intentional, reckless or negligent acts or omissions of Vendor or Vendor’s employees, agents, or Subcontractors.
- TERM AND TERMINATION.
- 1 Initial Term. This Agreement shall become effective on the Effective Date and shall remain in effect until terminated in accordance with this Section 13.
- 2 Termination for Convenience. Modas Systems may terminate this Agreement, or any SOW, at any time, with or without cause, effective immediately upon written notice to Vendor. Termination of this Agreement shall automatically terminate all SOWs. Termination of a SOW shall be effective only for the applicable SOW and shall not result in the termination of this Agreement.
- 3 Termination for Cause. Vendor may terminate this Agreement if Modas Systems breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice specifying the nature of the breach.
- 4 Consequences of Termination; Return of Modas Systems Property. Services to be performed pursuant to this Agreement shall cease immediately upon any termination of this Agreement. Upon expiration or termination of this Agreement or any SOW issued against it, if applicable, for any reason, Vendor shall within fourteen (14) days: (a) return to Modas Systems all equipment and (b) either return all Work Product, and all copies thereof made by Vendor or at Modas Systems’ written direction certify destruction of the same. Modas Systems’ sole obligation shall be to pay Vendor in accordance with Section 2 (Compensation) the compensation due for Services completed before such expiration or termination.
- 5 Survival. Those provisions, which by their nature are intended to survive the termination or expiration of this Agreement (including without limitation all limitations of liability, Vendor’s indemnification obligations, and Vendor’s obligations under Sections 6 and 7) , shall survive the termination or expiration of this Agreement.
- USE OF MODAS SYSTEMS PROPERTY.
Should Modas Systems permit Vendor to use any of Modas Systems’ equipment, tools, or facilities during the term of this Agreement, Vendor shall be responsible for any injury to any person (including death) or damage to property (including Modas Systems’) arising out of use of such equipment, tools or facilities whether or not such claim is based upon its condition or on the alleged negligence of Modas Systems in permitting its use. Vendor shall take all necessary precautions to prevent injury to any persons (including employees of Modas Systems) or damage to property (including Modas Systems’ property) during the term of this Agreement. Unless already so marked by Modas Systems, Vendor shall identify and conspicuously mark all Modas Systems property as belonging to Modas Systems and, upon request, shall promptly furnish Modas Systems with a list of all Modas Systems property being held by Vendor.
- RECORDS AND TAX INFORMATION.
During the term of this Agreement and for two (2) years thereafter, Vendor shall maintain detailed and accurate records with respect to Vendor’s performance of the Services, shall maintain such records in the manner required by applicable law and shall make such records available to Modas Systems upon Modas Systems’s request.
- ORDER OF PRECEDENCE.
Except as specifically provided otherwise in this Agreement, in the event of any conflict between this Agreement, and the other documents referenced herein, the following order of precedence shall be controlling: (a) this Agreement, (b) any exhibit hereto (“Exhibit(s)”), (c) any non-disclosure agreement between the Parties, (d) SOW, and (e) any Modas Systems purchase order.
- 1 Unless otherwise set forth in a SOW, all fees and other charges will be deemed to be inclusive of all sales, use, value-added, income, gross-receipts and other taxes, as well as all duties, excises, levies, assessments, and all shipping, freight, lading and transportation. Vendor will be responsible for and pay all taxes and shipping and transportation charges, however designated, which are levied or based on this Agreement. In the event that the Parties agree in a SOW that Modas Systems will pay any applicable tax, shipping or transportation charges, Vendor will break out such charges on a line-item basis. Modas Systems will have the right to require Vendor to contest within any imposing jurisdiction, at Modas Systems’ reasonable expense, any taxes or assessments that Modas Systems deems to have been improperly imposed on Modas Systems.
- 2 Notwithstanding the foregoing, if Modas Systems is required by applicable Law to withhold taxes from any payment due Vendor, then the amount due to Vendor in respect to such payment shall be reduced by the amount of such withholding; then Modas Systems will deliver to Vendor a tax withholding certificate or similar documentation reasonably satisfactory to Vendor evidencing payment of any such withholding. Upon receipt by Vendor of the tax withholding certificate, the portion of the invoice represented by the tax withholding certificate will be deemed fully paid.
- 3 If Vendor is a U.S. person or entity, to the extent any taxes are required by Law to be collected by Vendor, such taxes shall be separately itemized on the invoices to which they apply. Vendor acknowledges and agrees that federal and California withholding tax will apply to the total cost of Services performed in the United States and California and may apply to other amounts payable by Modas Systems under this Agreement and Modas Systems may withhold such taxes from payments due Vendor, unless Vendor provides proper certification that Vendor is exempt from federal backup withholding and California withholding (e.g. Form W-9 and California form 590). Upon execution of this Agreement and as requested by Modas Systems from time to time; Vendor will provide Modas Systems: (A) a copy of Vendor’s W-9 “Request for Taxpayer Identification Number and Certification” form; (B) California Form 587 “Nonresident Withholding Allocation Worksheet”; and (C) any and all documentation required to certify that Vendor is a US person or entity, the tax payer identification provided is correct and that Vendor is not subject to backup withholding.
- 4 If Vendor is a non-U.S. person or entity, Vendor shall provide to Modas Systems all documentation (including, without limitation, the necessary withholding application, form, or residency certificate) required for the application of any applicable Double Taxation Agreement. Such documentation shall be delivered promptly after Modas Systems’s request and it shall be true, correct and complete as of the date of the delivery. If valid documentation is not provided, the federal statutory withholding rate will be applied instead of the withholding rate provided by the applicable Double Taxation Agreement. Vendor acknowledges that California withholding will apply to Services performed in the State of California unless Vendor provides proper certification that it is exempt from California withholding (e.g., Form 590).
- WORK AUTHORIZATION.
Vendor represents that, prior to commencing performance, it has verified employment authorization for each Vendor employee who will be providing services to Modas Systems. In the case of foreign nationals needing sponsored work authorization, Vendor shall obtain and shall ensure proper work authorization remains in force for all Vendor employees who are providing services to Modas Systems.
- GENERAL PROVISIONS.
- 1 Notices. All notices given by either Party under this Agreement must be in writing and delivered by postage prepaid certified or registered mail (return receipt requested), or by overnight courier or by email with confirmation of receipt. In addition, all material notices (e.g., notices of breach, nonpayment, breach of confidentiality, third party claims, etc.) under this Agreement or a SOW to Modas Systems shall be emailed to email@example.com. Notices will be effective when delivered personally, or one (1) business day after being sent by an overnight courier, or three (3) business days after being sent postage prepaid by certified or registered mail, return receipt requested. Each Party may change its address by giving notice to the other Party of the new address.
- 2 Assignment. Vendor shall not assign any of its rights or obligations under this Agreement without the express prior written consent of Modas Systems; any attempted assignment in violation of the foregoing shall be void. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. At no additional cost and without the prior consent of Vendor, Modas Systems shall have the right to assign this Agreement or any rights, obligations or interests under this Agreement to any Affiliate. Modas Systems will notify Vendor in writing of any assignment pursuant to this section.
- 3 Injunctive Relief. Vendor acknowledges that any breach of Sections 6, 7 or 8 of this Agreement by Vendor would cause irreparable damage to Modas Systems for which monetary damages would be inadequate. Accordingly, Vendor agrees that injunctive relief is an appropriate remedy for any such breach, in addition to all other remedies Modas Systems may have.
- 4 Governing Law and Venue. All matters arising in connection with or relating to this Agreement or the enforcement or construction thereof shall be governed by and resolved in accordance with the laws of the state or country identified below without regard to any conflict of law principles that would result in the application of the laws of a different jurisdiction. Modas Systems and Vendor each hereby: (a) agrees that any suit, action, or other legal proceeding arising out of or relating to this Agreement shall be brought and adjudicated only in the venue identified below; (b) consents to and waives any objection to the personal jurisdiction and venue of such court in any such suit, action, or other legal proceeding; and (c) waives any purported right or claim to bring a motion to transfer such suit, action or other legal proceeding pursuant to 28 U.S.C. §§1404 or 1406, or comparable provision of other law, including based upon the doctrine of forum non conveniens.
|Modas Systems Entity||Applicable Jurisdiction||Venue|
|Modas Systems, Inc.||State of Texas||State or Federal courts located in Dallas, Texas|
- 5 Attorneys’ Fees. The prevailing Party in any litigation between the Parties relating to this Agreement shall be entitled to recover its reasonable attorneys’ fees and court costs, in addition to any other relief it may be awarded, from the non-prevailing Party.
- 6 Severability; Non-Waiver. If any provision of this Agreement is held to be illegal, unenforceable or invalid by any court of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect. The failure or delay of either Party to enforce at any time any provision of this Agreement shall not constitute a waiver of such Party’s right thereafter to enforce each and every provision of this Agreement.
- 7 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
- 8 Entire Agreement; Modification. This Agreement, together with the attached Exhibits, any non-disclosure agreement, and any SOW, constitutes the entire agreement between the Parties and supersedes all prior oral or written negotiations and agreements between the Parties with respect to the subject matter hereof. Any preprinted or other standard terms set forth on any Vendor order acknowledgment or other form will be deemed void and of no force or effect, irrespective of whether such form is countersigned by a representative of Modas Systems. Subject to the foregoing, no modification or amendment of this Agreement (including any exhibit hereto) shall be effective unless in writing signed by both Parties.
- Force Majeure. A party shall not be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement to the extent such failure or delay is caused by or results from acts of God; flood, fire or explosion; war, invasion, riot or other civil unrest; actions, embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; compliance with any law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; shortage of adequate power or telecommunications or transportation facilities; or any other event which is beyond the reasonable control of such party (each of the foregoing, a “Force Majeure Event”). A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance. Modas Systems may terminate this Agreement and/or any affected Statement of Work if such failure or delay continues for a period of thirty (30) days or more.
- 10 Counterparts; Facsimile. This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute this Agreement when a duly authorized representative of each Party has signed a counterpart. The Parties may sign and deliver this Agreement by facsimile transmission or PDF. Each Party agrees that the delivery of this Agreement by facsimile or PDF shall have the same force and effect as delivery of original signatures and that each Party may use such facsimile or PDF signatures of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
COMPENSATION AND REIMBURSEMENT
Modas Systems shall pay to Vendor the hourly rates or firm fixed fee specified in the applicable SOW for performance of the Services. The specified rates and fees include all elements of cost including but not limited to direct labor, overhead, general and administrative expenses, any applicable taxes and profit other than out of pocket expenses authorized by Modas Systems. Notwithstanding anything to the contrary, Modas Systems’ total payment obligation under this Agreement shall not exceed the aggregate total amount authorized in accordance applicable SOW(s) and Modas Systems purchase order.
NOTE: When prices quoted and/or amounts invoiced will include applicable taxes, Vendor shall clearly identify, on the invoice, the type and rate of tax being applied, as well as the jurisdiction imposing the tax. Each invoice shall include a statement by the Vendor indicating that the Vendor’s overhead is included in the invoiced amount.
If applicable, Modas Systems shall reimburse Vendor for reasonable and necessary out of pocket expenses pre-approved by Modas Systems (in its sole discretion) in connection with its performance of the Services, and supported by reasonably detailed documentation. All such out of pocket expenses shall be itemized on each invoice submitted to Modas Systems and shall be accompanied by the appropriate supporting documentation. The following costs shall not be charged to Modas Systems: (a) local transportation costs of travel to and from Modas Systems’ offices, (b) local telephone service and calls; and (c) office staff and supplies used in the normal course of performing the Services. In no event shall Modas Systems be liable for any “mark-up,” surcharge, etc. with respect to any cost or expense invoiced. Modas Systems’ total payment obligation under this Agreement shall not exceed the aggregate total amount authorized in accordance with SOW(s).
All amounts invoiced must be itemized and described with specificity.
To support payment for Services provided on an hourly basis, each invoice submitted therefore shall state that the number of hours by individual and labor category set forth therein was the actual number of hours expended by each individual during the period for which the invoice is submitted, and that all out of pocket expenses for which reimbursement is requested were properly incurred in the performance of the Services. All out of pocket expenses incurred in the performance of the Services and for which reimbursement is requested must be properly approved in advance. All taxes applied shall be specifically identified by rate and jurisdiction imposing the tax.
Vendor shall be paid only upon the timely submission of invoices to Modas Systems. Invoices not submitted in a timely manner may be subject to delay or rejection. For Services provided on an hourly basis, invoices shall be submitted on a monthly basis for Services performed the prior month. For Services provided on a firm fixed fee basis, invoices shall be submitted pursuant to the schedule set forth in the individual SOW. All invoices shall be submitted to the mailing address or email address (preferred) set forth below:
- Modas Systems, Inc.
- Attn: Accounts Payable
- 11450 Pagemill Road
- Dallas, Texas 75243
- Invoice inquiries shall be submitted to Accounts Payable at: firstname.lastname@example.org
All invoices shall reference the applicable, applicable SOW, and Modas Systems’ applicable purchase order number, and shall contain the information and supporting documentation specified in this Addendum A. Modas Systems shall pay all properly submitted and undisputed invoices within thirty (30) days after receipt of such invoice. Invoices received more than 90 days after Services have been performed or accepted, if required, will be rejected and not subject to payment by Modas Systems.